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R.  P.  N.  Y.  9 


ZONING  PRACTICE  IN  THE 
NEW  YORK  REGION 

By 

EDWARD  M.  BASSETT 

COMPRISING  A  SERIES  OF  AIDS  TO 
THE  PRACTICE  OF  ZONING,  A  STATE- 
MENT REGARDING  THE  APPLICA- 
TION OF  ZONING  IN  NEW  YORK  CITY, 
AND  A  MODEL  STATE  ENABLING  ACT 
WITH  ANNOTATIONS 


REGIONAL  PLAN  OF  NEW  YORK 
AND  ITS  ENVIRONS 

130  East  Twenty-second  Street 
New  York  City 

1925 

Price  25  Cents 


?Ex  Safaris 


SEYMOUR  DURST 


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Avery  Architectural  and  Fine  Arts  Library 
Gin  OF  Seymour  B.  Durst  Old  York  Library 


ZONING  PRACTICE  IN  THE 
NEW  YORK  REGION 

By 

EDWARD  M.  BASSETT 

COMPRISING  A  SERIES  OF  AIDS  TO 
THE  PRACTICE  OF  ZONING,  A  STATE- 
MENT REGARDING  THE  APPLICA- 
TION OF  ZONING  IN  NEW  YORK  CITY, 
AND  A  MODEL  STATE  ENABLING  ACT 
WITH  ANNOTATIONS 


REGIONAL  PLAN  OF  NEW  YORK 
AND  ITS  ENVIRONS 

130  East  Twenty-second  Street 
New  York  City 

1925 


REGIONAL  PLAN  OF  NEW  YORK  AND 
ITS  ENVIRONS 


COMMITTEE 

Frederic  A.  Delano,  Chairman 
Robert  W.  de  Forest  Frank  L.  Polk 

John  M.  Glenn  Frederic  B.  Pratt 

Dwight  W.  Morrow  Lawson  Purdy 

General  Director  of  Plans  and  Surveys 
Thomas  Adams 


LEGAL  DIVISION 

Edward  M.  Bassett,  in  charge 
Frank  B.  Williams,  Assistant 


Advisory  Committee 

James  Byrne  Harrison  P.  Lindabury 

Julius  Henry  Cohen  Isaac  N.  Mills 

Alfred  T.  Davison  Frank  H.  Sommer 


CONTENTS 

PAGE 

Mapped  and  Zoned  Areas  in  New  York  and  Environs   4 

Introduction   5 

PART  I 

Aids  to  the  Practice  of  Zoning   8 

PART  II 

Application  of  Zoning  in  New  York  City   27 

PART  III 

A  Form  of  State  Enabling  Act  for  Zoning   32 


REGIONAL 
PLAN  Of  NEW  YORK 
AND  ITS  ENVIRONS 

PHYSICAL  3U«¥rT-ODtir*ST 


Zonng  Plan 
being  prepared 

Zoning  Plan  adopted 


Boundarm  Note 

Stale  —  —      Circle?  intficale  Mm 

County   from  New  York  Cify  Hall 

Township.  Gly  etc  


ZONING  ORDINANCES  ADOPTED 


New  Jersey 

Garwood 

North  Plainfield 

Weehawken 

Irvington 

Bayonne 

Glen  Ridge 

Nutley 

Westfield 

Larchmont 

Belleville 

Glen  Rock 

Orange 

West  Hoboken 

Lawrence 

Bloomfield 

Hackensack 

Passaic 

West  New  York 

Lynbrook 

Bogota 

Hawthorne 

Paterson 

West  Orange 

Mamaroneck  Town 

Boonton 

Haworth 

Plainfield 

Mt.  Vernon 

Bound  Brook 

Highland  Park 

Pompton  Lakes 

New  York 

Newburgh 

Bradley  Beach 

Hillside 

Rah  way 

New  Rochelle 

Caldwell 

Hoboken 

Ridgefield  Park 

Brightwaters 

New  York 

Cliffside  Park 

Irvington 

Ridgewood 

Bronxville 

North  Pelham 

Clifton 

Jersey  City 

Riverside 

Dobbs  Ferry 

Ossining 

Cranford 

Kearny 

Roselle 

Eastchester  Town 

Pelham 

Cresskill 

Leonia 

Roselle  Park 

Elmsford 

Pelham  Manor 

Deal 

Linden 

Rutherford 

Farmingdale 

Port  Chester 

Dunellen 

Long  Branch 

Sea  Girt 

Floral  Park 

Rockville  Center 

East  Orange 

Lyndhurst 

South  Orange 

Freeport 

Rye 

Elizabeth 

Madison 

Summit 

Garden  City 

Scarsdale 

Englewood 

Maplewood 

Teaneck 

Great  Neck  Estates 

Shoreham 

Fairview 

Millburn 

Tenafly 

Greenburgh 

Tarrytown 

Fanwood 

Montclair 

Totowa 

Harrison 

Tuckahoe 

Fort  Lee 

Newark 

Verona 

Hastings 
Hempstead 

White  Plains 
Yonkers 

INTRODUCTION 


IN  this  brochure  Mr.  Edward  M.  Bassett  deals  primarily  with 
the  legal  phases  of  zoning,  in  respect  of  both  the  require- 
ments of  the  law  of  zoning  and  its  practical  application  in  the 
New  York  region.  It  does  not  contain  any  statement  of  policy 
regarding  the  classification  of  uses  and  the  standards  of  heights 
and  densities  of  buildings.  These  physical  aspects  of  the  problem 
will  be  a  subject  for  later  consideration  and  treatment.  Nor  does 
it  deal  with  the  merits  of  zoning.  The  principle  of  zoning  has 
been  almost  universally  accepted  as  sound  when  proper  methods 
are  employed  in  its  application.  This  application  in  a  munici- 
pality has  to  be  by  means  of  ordinances  based  on  a  state  enabling 
act.  It  is  of  essential  importance  that  the  powers  conferred  by  the 
state  enabling  act  should  be  adequate  to  permit  of  wise  regulation 
of  the  uses  of  land  and  buildings  and  of  the  heights  and  densities 
of  buildings  to  be  constructed  or  reconstructed  upon  the  land,  and 
that  the  ordinances  be  framed  in  conformity  with  the  provisions 
of  the  enabling  act.  The  purpose  of  the  brochure  is  to  provide 
helpful  information  as  a  guide  for  action,  in  the  zoning  of  their 
areas,  by  municipal  authorities  in  the  New  York  region. 

Part  I  contains  a  series  of  aids  to  the  practice  of  zoning.  In 
these  aids  Mr.  Bassett  has  set  forth  what  he  conceives  to  be  the 
leading  considerations  that  should  be  borne  in  mind  by  municipal 
councils  in  giving  effect  to  the  powers  conferred  upon  them  by  the 
state  enabling  act  in  New  York,  New  Jersey,  or  Connecticut. 

Part  II  gives  a  description  of  the  application  of  zoning  in  the 
City  of  New  York. 

Part  III  consists  of  a  model  form  of  a  state  enabling  act  with 
notes  prepared  by  Mr.  Bassett.  Acts  are  in  force  in  all  three 
states,  and  the  statutory  improvements  needed  are  referred  to 
in  the  first  section  of  Part  I. 

The  main  purposes  of  the  Committee  in  publishing  this  bulletin 
are,  in  the  first  place,  to  put  in  the  hands  of  those  interested  in 
securing  adequate  legislation  for  zoning  in  the  three  states,  into 
which  the  New  York  region  extends,  a  model  that  will  afford 

5 


guidance  as  to  the  precise  scope  and  character  of  the  powers  that 
must  be  conferred  by  the  state  upon  municipalities,  to  enable 
them  to  prepare  and  give  effect  to  zoning  ordinances  in  their  re- 
spective areas.  In  the  second  place  it  desires  to  be  of  direct  ser- 
vice to  the  municipalities  in  showing  the  limitations  under  which 
they  must  continue  to  prepare  zoning  ordinances  until  the  powers 
contained  in  existing  legislation  are  extended.  These  limitations 
can  and  should  be  ascertained  by  comparison  between  the  model 
form  of  Mr.  Bassett  and  the  existing  acts  in  New  York,  New 
Jersey,  and  Connecticut.  In  cases  where  enabling  acts  are  in- 
adequate, as  pointed  out  by  Mr.  Bassett,  ordinances  prepared 
under  them  must  be  inadequate.  But  it  is  better  that  they  should 
be  so,  pending  further  powers  being  obtained,  than  that  munici- 
palities should  go  beyond  what  is  now  authorized  and  thereby 
bring  about  adverse  court  decisions.  Method  is  of  first  importance 
in  the  application  of  zoning,  for  however  correct  and  equitable 
any  zoning  regulations  may  be  in  principle,  they  cannot  be 
sustained  unless  they  are  in  strict  alignment  with  grants  of  power 
obtained  from  the  state. 

In  making  the  studies  necessary  to  enable  the  Committee  on 
the  Regional  Plan  to  formulate  proposals  regarding  improve- 
ments needed  in  the  classification  of  uses  and  the  standards  that 
should  be  applied  to  secure  reasonable  restriction  of  heights  and 
densities,  consideration  is  being  given  to  the  experience  gained 
in  the  City  of  New  York  during  the  last  eight  years,  and  to  the 
knowledge  which  has  been  obtained  from  the  economic  and  social 
investigations  of  the  Committee  regarding  the  trends  of  develop- 
ment and  the  growth  of  the  evils  of  congestion  in  the  region. 
It  is  desirable  to  secure  some  extension  or  strengthening  of  the 
standards  now  enforced  in  the  zoning  resolution  which  was  * 
established  in  Greater  New  York  in  1916.  The  time  appears  to 
be  ripe  for  making  improvements  in  New  York  standards  even 
in  those  places  where  existing  conditions  prevent  the  highest 
quality  of  zoning  from  being  obtained.  Recent  Massachusetts 
decisions  show  that  the  scope  of  zoning  may  be  considerably 
extended  in  the  future. 

It  is  recognized,  however,  as  pointed  out  by  Mr.  Bassett,  that 
the  opportunities  for  promoting  the  best  quality  of  zoning  are  to 
be  found  in  the  suburban  or  country  areas  where  land  is  not  yet 
fully  developed,  or  better  still,  is  completely  undeveloped.  Ex- 
perience of  the  application  of  zoning  brings  out  strikingly  the 

6 


advantages  that  can  be  gained  by  a  combination  of  zoning  and 
platting  regulations  in  undeveloped  areas,  such  as  large  portions 
of  Staten  Island,  which  are  outside  the  zoning  regulation.  In 
developed  or  built-upon  areas  it  will  usually  be  found  that  the 
necessity  of  compliance  with  established  conditions  prevents  ade- 
quate standards  being  obtained  by  means  of  a  zoning  regulation. 
For  instance,  a  regulation  as  to  density  that  would  be  proper 
and  desirable  under  the  police  power  might  be  held  invalid  by  the 
courts  in  an  area  already  developed,  if  the  owners  opposed  it  as 
arbitrary  and  unreasonable.  But  the  same  regulation  would 
probably  be  upheld  in  any  undeveloped  districts.  Moreover, 
once  a  street  system  has  become  fixed,  it  is  not  possible  to  obtain 
the  desirable  flexibility  of  arrangement,  in  adjusting  the  street 
plan  to  the  zoning  plan,  and  vice  versa,  that  is  necessary  for 
economy.  In  many  cases  the  fact  that  large  expenditure  has 
been  made  on  local  improvements,  or,  in  other  cases,  that  crowded 
development  has  already  taken  place  in  a  neighborhood,  prevents 
a  good  quality  of  zoning  from  being  obtained.  Moreover,  as  Mr. 
Bassett  has  pointed  out  elsewhere,  "the  setting  aside  of  small 
parks  under  the  police  power  is  practicable  only  in  undeveloped 
or,  better  yet,  in  unplatted  districts." 

The  full  advantage  of  planning  undeveloped  areas  will  be 
obtained  only  when  there  are  adequate  state  enabling  acts  for 
platting  in  addition  to  the  enabling  acts  for  zoning.  It  follows 
that  one  of  the  important  duties  of  the  legal  advisers  of  the 
Regional  Plan  will  be  to  formulate  proposals  for  obtaining  ade- 
quate power  to  deal  with  the  approval  of  platting.  This  will  be  a 
subject  of  later  recommendations  when  the  legal  studies  being 
made  on  the  subject  are  more  advanced. 

Therefore  it  is  of  importance  that  this  bulletin  should  not  be 
regarded  as  a  complete  statement  of  policy  or  practice  in  con- 
nection with  zoning  in  the  New  York  region.  As  already  said, 
it  is  a  statement  of  legal  requirements  and  limitations,  and 
of  important  principles  to  be  followed  in  connection  with  the 
statutory  application  of  zoning.  No  authority  stands  so  high  as 
Mr.  Bassett  as  an  exponent  of  this  subject,  not  only  because  of  his 
unique  knowledge  and  experience,  but  also  because  of  the  high 
judicial  qualities  which  he  brings  to  the  consideration  of  all  its 
problems. 

Thomas  Adams 

November,  1924. 

7 


PART  I 


AIDS  TO  THE  PRACTICE  OF  ZONING 

I.   INTRODUCTORY  NOTES 

WERE  it  desired  to  maintain  a  logical  order  of  presenta- 
tion, the  form  of  the  state  enabling  act  which  consti- 
tutes (with  notes)  Part  III  of  this  brochure  should 
have  preceded  the  statement  in  this  part  dealing  with  practical 
problems  connected  with  the  application  of  zoning.  But  the 
larger  audience  for  whom  the  brochure  has  been  prepared  con- 
sists of  those  who  are  engaged  in  the  administration  rather  than 
in  the  making  of  the  law.  Although  those  who  comprise  this 
group  are  interested  in  both  questions,  it  has  seemed  best  first  to 
bring  to  their  attention  the  following  aids  to  practice  and  to 
follow  on  with  the  form  of  the  act. 

It  should  be  recognized  that  zoning  has  nothing  to  do  with 
private  restrictions.  It  is  the  method  by  which  the  community 
protects  itself  against  harmful  invasions  of  buildings  and  uses 
under  the  community  power,  commonly  called  the  police  power, 
the  same  as  it  protects  itself  against  fires  by  fire  laws  and  disease 
by  health  laws.  Statutory  methods  must  be  developed  that  will 
allow  the  proper  zoning  of  the  unincorporated  areas  without 
affecting  the  power  of  incorporated  municipalities  to  do  their  own 
zoning.  The  suggestion  of  the  recognition  of  belts  one  thousand 
feet  wide  at  the  boundaries  of  cities,  villages  and  unincorporated 
areas  was  embodied  in  the  new  Nassau  County  charter.  This 
device  is  intended  to  prevent  inharmonious  zoning  at  boundary 
lines.  Some  such  plan  should  be  provided  in  all  the  states  for 
zoning  along  boundary  lines. 

The  principal  further  needs  of  the  zoning  resolution  and  maps 
in  the  City  of  New  York  are  as  follows: 

(1)  Adequate  provisions  for  penalty  actions,  injunctions  and 
misdemeanors. 

(2)  Regulation  of  density  of  population.  The  absence  of  this 
regulation  is  the  greatest  shortcoming  of  the  zoning  plan  of  New 

8 


York  City.  This  probably  should  be  by  limitation  of  number  of 
families  per  superficial  feet  of  lot  space.  The  proper  limitation 
should  be  supplied  for  each  area  district. 

(3)  Establishment  of  a  new  area  district  between  non-elevator 
apartment  house  and  the  one-  and  two-family  residence  districts  in 
case  family  limitation  is  not  sufficient  to  bring  about  a  sufficient 
allowance  of  light  and  air  in  connection  with  apartment  houses. 

(4)  Prevention  of  large  scale  light  industry  in  principal  retail 
and  wholesale  business  streets. 

(5)  Zoning  of  Jamaica  Bay  and  parts  of  Staten  Island  at  pres- 
ent marked  "undetermined"  on  the  use  map. 

The  principal  mistakes  of  existing  ordinances  in  parts  of  the 
Region  outside  of  New  York  are  the  following: 

(1)  The  creation  of  large  residence  districts  without  provision 
for  nearby  local  business  districts. 

(2)  Regulations  in  the  nature  of  private  restrictions  and  with- 
out regard  to  police  power  fundamentals — health,  safety,  morals 
and  the  general  welfare. 

(3)  Unwarranted  and  excessive  prohibition  of  hospitals  and 
eleemosynary  institutions. 

(4)  Unwarranted  and  excessive  prohibition  of  industry  along 
railroads  and  waterways. 

(5)  Omission  of  provisions  for  a  functioning  board  of  appeals. 

(6)  Confusion  of  the  functions  of  legislative  and  administrative 
boards  and  improper  doubling  up  of  functions. 

II.    STATE  ENABLING  ACTS 

The  best  zoning  ordinances  are  those  that  carry  out  the  in- 
structions of  the  enabling  act  clearly  and  briefly. 

Whatever  the  state  enabling  act  declares  to  be  the  law  need 
not  be  repeated  in  the  ordinance.  There  is  no  need,  for  instance, 
of  repeating  in  the  ordinance  the  words  of  the  enabling  act  re- 
garding the  appellate  powers  of  the  board  of  appeals  or  the  pro- 
vision of  the  20%  protest.  Some  say  that  it  is  a  good  plan  to 
incorporate  such  matters  in  the  ordinance  so  that  the  whole  pro- 
cedure so  far  as  possible  shall  be  before  the  reader.  This  view  is 
probably  mistaken.  The  provisions  of  the  state  law  are  too  long 
to  be  embodied  in  the  ordinance.  If  part  is  left  out,  all  may 
better  be  left  out.  This  not  only  makes  the  ordinance  shorter, 
but  in  case  the  state  enabling  act  is  amended  it  does  not  become 
necessary  to  amend  the  ordinance  also. 

9 


The  zoning  of  a  municipal  area  affects  property  owners  so  inti- 
mately that  state  legislatures  have  uniformly  granted  the  power 
to  zone  to  each  municipality.  Much  might  be  said  in  favor  of 
county  zoning  as  a  method  of  bringing  about  wise  regional  plan- 
ning. Throughout  the  Region,  however,  the  smaller  administra- 
tion divisions,  such  as  the  city,  village  or  town,  have  the  stronger 
government  and  citizens  seem  to  prefer  to  confine  the  zoning 
power  to  officials  inside  of  their  own  municipality  instead  of  allow- 
ing outsiders  to  have  a  hand  in  the  work.  Then,  too,  enabling  acts 
already  passed  provide  for  the  zoning  of  nearly  all  the  Region. 
It  is  not  likely  that  they  will  be  readily  changed  to  bring  about 
county  zoning.  For  the  present  at  least  it  looks  as  though  each 
municipality  must  be  depended  upon  to  zone  its  own  territory 
wherever  the  state  has  given  it  the  power  to  do  so. 

New  York. — The  enabling  act  for  Greater  New  York  is  con- 
tained in  its  charter.1  Other  cities  in  the  Region  receive  power 
to  zone  from  the  general  city  law.2  Villages  receive  power  to 
zone  from  the  village  law.3  The  town  law  outlines  an  incomplete 
grant  of  power  for  townships,  but  it  is  so  defective  as  to  be  almost 
unworkable.4  The  best  of  all  these  laws  is  the  village  law.  The 
poorest  is  the  town  law.  The  main  defect  of  the  New  York 
charter  and  the  general  city  law  is  the  omission  of  power  to 
regulate  density  of  population. 

New  Jersey. — This  state  now  has  one  of  the  best  enabling  acts 
for  zoning  in  the  United  States.  In  1924  the  legislature  repealed 
the  medley  of  old  enabling  acts  which  had  caused  considerable 
confusion  and  passed  a  new  act  for  all  the  municipalities  of  the 
state.5  Consequently  any  city,  borough,  village,  town  or  township 
of  this  state  can  now  look  to  the  new  enabling  act  and  find  a 
simple  and  effective  method  of  establishing  regulations.  Muni- 
cipalities in  New  Jersey,  which  had  adopted  zoning  ordinances 
prior  to  March  11,  1924,  should  take  the  necessary  steps  to 
bring  their  ordinances  under  this  new  law.  In  such  cases  the 
repassage  of  the  ordinance  is  the  surest  way  of  accomplishing 
this. 

Connecticut. — An  incomplete  enabling  act  for  certain  cities 
and  towns  was  passed  by  the  legislature  of  1923.6  Municipalities 
within  the  Region  to  which  it  gives  the  power  to  zone  are  the 

1  Chapter  470,  Laws  of  1914.  2  Chapter  483,  Laws  of  1917. 

3  Chapter  564,  Laws  of  1923.  <  Chapter  322,  Laws  of  1922. 

6  Chapter  146,  Laws  of  1924.  6  Chapter  279,  Laws  of  1923. 

10 


towns  of  Greenwich  and  Fairfield,  and  the  cities  of  Bridgeport  and 
Norwalk.   The  unusual  and  doubtful  provisions  of  this  act  are: 

(1)  An  appointive  zoning  commission  instead  of  the  elected 
legislative  body  must  adopt  the  zoning  ordinance; 

(2)  After  a  written  protest  the  adoption  of  the  original  or- 
dinance requires  a  four-fifths  vote; 

(3)  Appeals  to  the  board  of  adjustment  are  not  confined  to 
applications  for  permits; 

(4)  No  rule  for  the  guidance  of  the  board  of  adjustment  in 
making  variances  is  given. 

Notwithstanding  these  imperfections  of  the  enabling  act  it  is 
probably  better  for  such  municipalities  as  can  do  so  to  adopt 
zoning  ordinances  than  to  suffer  the  injuries  of  unregulated  build- 
ing. The  courts  of  this  state  are  liberal  in  their  recognition  of  the 
police  power.1  The  town  of  West  Hartford  has  adopted  and  is 
enforcing  a  zoning  ordinance  under  this  incomplete  state  enabling 
act. 

HI.  SPARSELY  SETTLED  LOCALITIES 
Methods  of  zoning  populous  communities  have  been  quite  well 
established,  but  little  has  been  done  in  this  country  in  zoning 
vacant  or  sparsely  settled  land.  It  will  be  a  mistake  to  zone  the 
settled  communities  and  leave  the  country  districts  unprotected, 
because  in  that  case  all  kinds  of  undesirable  structures  and 
uses  will  be  pushed  out  into  the  country  districts.  Good  city 
planning  means  that  all  districts  shall  be  protected  according  to 
their  needs.  For  instance,  if  cities  contain  the  right  spots  for 
slaughter  houses  or  garbage  reduction  works,  such  uses  should 
not  be  pushed  off  into  neighboring  country  districts  which  are 
suitable  for  farms,  open  places  and  residences.  Zoning  should 
cover  the  entire  terrain  of  each  state  within  the  Region.  The 
tendency  of  court  decisions  is  to  favor  the  inclusion  of  all  land  in 
zoning  plans  if  carefully  worked  out. 

In  sparsely  settled  localities  it  is  difficult  to  segregate  business 
from  residence  districts  and  impossible  to  do  so  unless  where 
zoning  is  made  part  of  a  comprehensive  city  plan.  Probably  the 
most  that  can  wisely  be  done  is  to  segregate  heavy  or  nuisance 
industry-  from  protected  localities.  In  the  zoning  of  Greater  New 
York  part  of  Staten  Island  was  protected  against  heavy  industry 
by  keeping  it  in  the  business  zone.  This  allowed  the  construction 

'Town  of  Windsor  v.  Whitney,  95  Conn.  357  (1920). 
II 


of  residences,  stores,  and  also  structures  wherein  quarter  of  the 
floor  space  could  be  used  for  light  industry.  Later,  as  normal  de- 
velopment came  into  these  great  protected  areas  marked  busi- 
ness zones,  they  have  been  further  divided  into  residence  and 
business  districts.  The  main  thing  to  prevent  in  sparsely  settled 
localities  is  the  sporadic  and  out-of-place  heavy  or  nuisance  in- 
dustry. Plenty  of  space  should  be  left  for  such  purposes  but  this 
space  should  be  near  waterways  or  railroads  and  where  it  will  not 
injure  the  future  development  of  farms,  residences,  open  spaces 
and  business  centers.  It  is  dangerous  to  zone  large  areas  as  res- 
idence districts.  It  might  well  happen  that  the  owner  of  a  small 
plot  would  prepare  and  offer  his  building  plans  for  a  store  or 
blacksmith  shop.  Then  if  under  the  zoning  plan  he  was  prevented 
from  obtaining  his  permit,  he  might  apply  to  the  court  for  an 
order  compelling  the  building  commissioner  to  grant  the  permit 
on  the  ground  that  there  was  no  store  or  no  blacksmith  shop 
within  a  mile  of  his  site  and  that  it  was  unreasonable  to  make 
regulations  that  prevented  people  from  enjoying  these  facilities 
within  walking  distance.  If  to  obviate  this  trouble  both  resi- 
dence and  business  districts  are  created  before  the  normal  course 
of  development  is  perceptible,  there  is  danger  that  the  business 
nuclei  will  be  put  in  the  wrong  spots.  Of  course,  if  there  are 
natural  locations  for  business  where  surrounding  property  is  not 
injured,  then  there  would  seem  to  be  no  reason  why  business 
districts  might  not  be  introduced  in  the  midst  of  residence  areas. 
Where,  however,  the  development  of  the  entire  area  is  inchoate 
this  undoubtedly  safer  to  zone  only  against  heavy  industry. 

New  York. — A  different  situation  obtains  in  this  state  which 
perhaps  makes  the  problem  more  complex  than  in  either  New 
Jersey  or  Connecticut.  Cities  and  towns  comprise  all  the  terrain. 
Villages,  however,  are  contained  within  and  constitute  part  of 
towns.  The  sparsely  settled  localities  in  this  state  are  in  towns 
outside  of  villages  and  cities.  The  legislature  should  pass  a 
zoning  enabling  act  applicable  to  towns  outside  of  the  limits  of 
villages  and  cities  therein  contained.  As  village  and  city  resi- 
dents will  be  represented  on  town  boards,  the  town  zoning  will 
be  done  with  a  recognition  of  the  interests  of  the  village  or  city 
embraced  therein.  There  should,  of  course,  be  harmonious 
zoning  on  both  sides  of  the  boundaries  of  municipalities. 

It  is  perhaps  unnecessary  to  enter  into  the  subject  of  enlarged 
county  government  and  the  possibility  of  county  zoning  in  some 

12 


of  the  counties  of  the  Region.  The  new  Nassau  County  charter 
was  passed  by  the  legislature,  but  is  subject  to  a  referendum  vote 
in  1925. 1  That  charter  outlines  a  method  of  compelling  the  con- 
sent of  two  zoning  authorities  along  division  lines  in  order  to  pre- 
vent dumping,  but  it  remains  to  be  seen  whether  this  more  com- 
plex method  will  work  out  any  better  than  for  cities  to  do  their 
own  zoning  under  the  general  city  law,  villages  their  own  under 
the  village  law,  and  towns  outside  of  the  village  or  city  limits 
their  own  under  a  new  town  law. 

New  Jersey. — Here  this  problem  is  comparatively  simple. 
Municipalities  within  the  purview  of  the  zoning  enabling  act  em- 
brace all  the  terrain.  These  are  cities,  boroughs,  villages,  towns 
and  townships.  Moreover  there  is  no  overlapping  of  municipali- 
ties. If  every  municipality  is  zoned,  then  the  entire  terrain  of 
New  Jersey  within  the  Region  is  zoned.  The  sparsely  settled 
localities,  as  well  as  the  settled  communities,  would  all  come 
under  the  protection  of  zoning. 

Connecticut. — Towns  and  cities  occupy  the  whole  terrain. 
Cities,  however,  are  within  and  part  of  towns.  On  this  account 
the  form  of  legislation  for  zoning  in  Connecticut  cannot  be  so 
simple  as  in  New  Jersey.  If  Connecticut  passed  an  enabling  act 
granting  the  power  to  zone  to  all  the  municipalities,  there  would 
be  immediate  conflict  between  towns,  and  cities  that  were  within 
and  part  of  towns.  Therefore  the  Connecticut  enabling  act  above 
referred  to  grants  the  power  to  zone  to  the  city  of  Stamford  and 
also  to  the  town  of  Stamford  outside  of  the  limits  of  the  city  of 
Stamford.  Sparsely  settled  localities  in  Connecticut  are  in  towns 
outside  of  cities  and  in  those  parts  of  non-city-containing  towns 
which  are  distant  from  the  built-up  localities.  When  the  legis- 
lature passes  a  general  act  for  zoning,  it  should  grant  the  power 
to  zone  (1)  to  cities,  (2)  to  towns  not  containing  cities  and  (3)  to 
towns  outside  of  the  limits  of  cities  contained  therein. 

IV.    ONE-FAMILY  HOUSE  DISTRICTS 
The  first  zoning  plan  in  this  country,  that  of  Greater  New 
York,2  proceeded  on  the  principle  that  use  districts  should  be  few 
in  number  and  general  in  character.    It  was  considered  that  the 
courts  might  be  critical  of  attempts  to  segregate  districts  accord- 

1  Chapter  863,  Article  17,  Laws  of  1923. 

s  For  description  of  the  classification  of  the  New  York  zoning  regulations 
referred  to  in  this  section  see  Part  II. 


13 


ing  to  use  and  therefore  it  was  thought  that  broad  distinctions 
clearly  based  on  the  police  power  would  carry  a  strong  appeal  to 
the  courts,  whereas  if  a  multitude  of  use  segregations  were  made, 
the  courts  might,  and  probably  would,  fail  to  perceive  that  the 
differences  related  to  the  health,  safety,  morals  and  general  wel- 
fare of  the  community.  For  instance,  some  cities  in  other  states 
have  established  local  business  districts  for  less  important  busi- 
ness streets  in  residential  localities  and  commercial  districts  for 
the  main  business  centers.  The  distinction  between  two  such 
districts  is  not  so  clearly  brought  under  the  police  power  as  the 
distinction  between  business  and  residence.  Accordingly  the  use 
maps  of  New  York  show  only  residence,  business  and  unrestricted 
districts.  Inasmuch  as  the  courts  had  theretofore  looked  with 
more  favor  on  regulations  of  height  and  area,  numerous  height 
and  area  districts  were  established  in  an  effort  to  bring  about 
greater  distribution  of  population  in  residence  districts,  especially 
in  the  suburbs.  In  other  words,  the  segregation  of  open  construc- 
tion from  close  construction  was  sought  under  height  and  area 
regulations  rather  than  under  use  regulations.  It  was  hoped  that 
E  area  districts  in  which  buildings  would  not  cover  more  than  30 
per  cent  of  the  lots  would  build  up  with  detached  one-family 
houses.  High  cost  of  construction,  however,  brought  about  a 
tendency  to  build  small  units,  and  landowners  began  to  build 
two-family  houses  in  the  form  of  long  and  narrow  structures  in 
E  districts,  sometimes  extending  enclosed  front  porches  to  the 
street  line.  The  increase  of  this  practice  brought  about  the 
establishment  of  the  F  area  district.  The  requirements  of  this 
district  compelled  every  new  building  to  have  a  front  yard,  two 
side  yards  and  a  smaller  percentage  of  cover  than  the  E  district. 
Thus  far  the  requirements  of  the  F  district  have  produced  one- 
family  houses.  The  establishment  of  the  F  district  was  followed 
by  an  amendment  to  the  E  district  provisions  requiring  a  ten- 
foot  front  yard. 

It  can  readily  be  seen,  therefore,  that  the  creation  of  one-family 
detached  house  localities  even  in  Greater  New  York  under  the 
area  regulations  is  a  matter  of  some  difficulty.  In  smaller  com- 
munities it  might  well  be  more  difficult.  If  the  New  York  charter 
had  provided  for  regulation  of  density  of  population,  the  zoning 
regulations  of  the  area  map  might  have  specified  limitations  of 
families  per  acre  or  of  the  number  of  square  feet  per  family  or  of 
the  street  frontage  per  family.     In  this  manner  one-family 

14 


detached  house  localities  might  bedeveloped  with  the  full  approval 
of  the  courts.  The  provision  for  regulation  of  density  of  popula- 
tion was  omitted  from  the  first  zoning  enabling  acts  of  many 
states  although  for  the  last  several  years  it  has  almost  without 
exception  been  included  in  new  legislation. 

Immediately  after  the  establishment  of  zoning  in  New  York 
in  1916  other  cities  throughout  the  country  cut  the  Gordian  knot 
by  creating  a  use  district  requiring  one-family  detached  houses. 
The  people  of  some  cities  frankly  said  that  the  main  reason  for 
zoning  was  to  establish  one-family  detached  house  districts. 
Probably  more  than  half  of  the  zoning  ordinances  of  the  country 
have  placed  one-family  detached  house  districts  on  the  use  map. 
Every  court  decision  in  the  country,  however,  has  declared  against 
the  legality  of  one-family  detached  house  districts,1  and  the 
same  may  be  said  of  two-family  house  districts  except  for  two 
decisions  in  courts  of  first  resort  in  the  state  of  Ohio.2  In  all  the 
one-family  detached  house  district  cases  that  have  arisen  the 
courts  have  pointed  out  that  they  were  unable  to  see  any  con- 
nection with  the  health,  safety,  morals  and  general  welfare  of  the 
community.  Some  opinions  have  stated  that  a  two-  or  three- 
family  house  surrounded  with  plenty  of  open  space  could  not  be 
proved  to  be  less  sanitary,  safe  and  moral  than  the  ordinary  one- 
family  detached  house.  It  is  believed  that  before  long  courts 
generally  will  recognize  a  distinction  on  this  score  between  one- 
family  detached  houses  on  the  one  side  and  multi-family  houses 
on  the  other,  and  between  dwelling  house  districts  allowing  either 
one-  or  two-family  houses  on  the  one  side  and  multi-family  house 
districts  providing  for  three  or  more  families  on  the  other.  When 
this  comes  about  the  courts  will  recognize  the  two  Ohio  cases  as 
following  the  correct  line  of  reasoning.  If  in  the  trial  of  one- 
family  house  district  and  two-family  house  district  cases  the 
city  attorney  will  place  before  the  court  by  opinion  evidence  or 
otherwise  the  subjects  of  noise,  litter,  deliveries  of  goods,  possi- 

1  Handy  v.  Village  of  South  Orange,  118  Atl.  838  (N.  J.,  1922). 

State  ex  rel.  Vernon  v.  Mayor  &  Council  of  Town  of  Westfield,  124  Atl.  248 
(N.  J.,  1923). 

Miller  v.  Board  of  Public  Works  of  Los  Angeles,  District  Court  of  Appeal, 
Second  Appellate  District,  Calif.,  Division  Two,  Dec.  21,  1923. 

Ingersoll  v.  Village  of  South  Orange,  N.  J.  Adv.  Rep.,  Vol.  II,  No.  40,  p.  882, 
October  4,  1924. 

Jersey  Land  Co.  v.  City  of  East  Orange,  N.  J.  Adv.  Rep.,  Vol.  II,  No.  41, 
p.  1411,  October  11,  1924. 

2  State  ex  rel.  Morris  v.  East  Cleveland,  22  Ohio  N.  P.  (N.  S.)  549  (1920). 
Kahn  Bros.  Co.  v.  Youngstown,  25  Ohio  N.  P.  (N.  S.)  31  (1924). 

15 


bility  of  contagion  and  danger  of  fire,  the  courts  will  be  more 
likely  to  uphold  the  segregation  under  the  police  power.  This 
outcome  is  uncertain,  however,  and  it  would  seem  to  be  the  part 
of  wisdom,  for  the  present  at  least,  to  establish  only  one  use 
district  for  residences  of  all  kinds  and  depend  on  requirements  of 
the  area  in  respect  of  density  and  height  maps  for  the  prevention 
of  close  building  and  the  production  of  one-family  detached 
houses.1 

In  municipalities  which  have  adopted  one-family  detached 
house  districts  on  the  use  maps,  criticism  has  frequently  arisen 
to  the  effect  that  zoning  is  a  rich  man's  proposition  and  that  the 
police  power  is  being  employed  not  for  the  community  welfare 
but  for  the  preservation  of  exclusive  localities.  This  criticism  is 
not  justifiable.  It  is  generally  recognized  that  a  community  of 
small  detached-home  owners  has  many  reasons  for  existence 
apart  from  attempted  exclusiveness.  Nevertheless  it  is  likely 
that  the  best  way  to  answer  this  criticism  is  to  show  the  critics 
that  it  is  not  the  number  of  families  in  a  single  building  but  the 
amount  of  open  space  around  the  building  that  is  controlled  by 
the  zoning  regulations.  Let  it  be  apparent  that  a  two-family 
house  or  a  multi-family  house  can  be  built  in  any  district  if  the 
required  amount  of  open  space  or  street  frontage  is  dedicated  to 
the  building.  There  would  seem  to  be  no  objection  to  fixing  the 
amount  of  this  open  space  or  street  frontage  in  relation  to  the 
number  of  families.  This  method  relates  directly  to  density  of 
population  and  to  the  health,  safety  and  general  welfare  of  the 
community. ' 

It  is  becoming  increasingly  apparent  that  the  courts  are  more 
likely  to  uphold  area  and  height  regulations  than  use  regulations. 
It  cannot  be  doubted  that  for  many  years  to  come  courts  will  be 
more  likely  to  uphold  area  regulations  producing  one-family 
houses  in  the  main  rather  than  use  regulations  requiring  one- 
family  detached  houses.  These  area  regulations  can  be  based  on 

(1)  Required  courts  and  yards  (including  front  yards), 

(2)  Percentage  of  lot  covered, 

(3)  Required  square  feet  of  lot  per  family, 

(4)  Required  street  frontage  per  family. 

1  Since  the  preparation  of  this  report  the  Supreme  Judicial  Court  of  Massa- 
chusetts have  handed  down  their  decision  upholding  one-family  house  dis- 
tricts on  the  use  map  (Brett  v.  Town  of  Brookline,  October  18,  1924,  145 
N.  E.  269). 

16 


Regulation  by  number  of  families  has  become  well  established 
in  the  Region.  It  was  recognized  in  the  tenement  house  law  of 
New  York,  and  has  been  employed  in  many  building  codes  and 
zoning  ordinances.  Fanciful  objections  are  sometimes  made  on 
the  grounds  that  some  families  are  large  and  some  small  or  that 
a  family  cannot  be  defined.  From  a  practical  point  of  view,  how- 
ever, this  method  is  probably  the  most  effective.  A  family  is  any 
number  of  individuals  living  together  as  a  single  housekeeping 
unit,  and  doing  their  cooking  upon  the  premises. 

New  York. —  In  cities  detached  homes  must  be  obtained,  if  at 
all,  by  court  and  yard  provisions  and  the  limitation  of  the  per- 
centage of  lot  covered.  Later  if  the  New  York  charter  and  the 
general  city  law  are  amended  to  provide  for  regulation  of  density 
of  population,  limitations  of  square  feet  per  family  and  street 
frontage  per  family  can  be  introduced.  Inasmuch  as  the  village 
law  provides  for  regulation  of  density  of  population,  the  four 
methods  enumerated  above  should  be  used  instead  of  creating 
one-family  detached  house  use  districts.  Towns  cannot  safely  be 
zoned  at  all  until  an  enabling  act  is  passed  for  them. 

New  Jersey. —  Now  that  this  state  has  its  new  zoning  enabling 
act  passed  in  1924,  which  includes  a  provision  for  regulation  of 
density  of  population,  it  is  prudent  to  eliminate  one-family  de- 
tached house  districts  on  the  use  map  and  establish  area  districts 
by  means  of  the  four  regulative  methods  stated  above. 

Connecticut. — -One-family  detached  house  districts  on  the  use 
map  should  be  avoided.  Regulations  to  produce  detached  units 
must  consist  of  front,  side  and  rear  yard  requirements  and  limita- 
tion of  percentage  of  lot  covered. 

V.  DENSITY  OF  POPULATION 
Although  regulation  of  density  of  population  was  one  of  the 
main  objects  sought  in  the  zoning  of  Greater  New  York,  the 
framers  of  the  state  and  local  legislation  depended  too  much  on 
regulation  of  height  and  bulk  in  seeking  to  accomplish  this  result. 
The  C  district  on  the  area  map  of  New  York  makes  possible  a 
far  greater  density  than  should  have  been  allowed.  The  same 
may  be  said  of  the  D  district  although  in  the  latter  district  the  re- 
sults have  not  been  so  marked.  In  1915  only  a  few  people  were 
convinced  that  sunlight  apartments  would  be  successful.  It  has 
been  suggested  that  a  new  district  intermediate  between  D  and  E 
should  be  created  and  large  parts  of  present  C  and  D  districts 

17 


should  be  placed  in  this  new  district.  Even  the  E  district  did  not 
bring  about  the  distribution  of  population  that  was  hoped  for, 
which  fact  had  much  to  do  with  the  creation  of  the  new  F  dis- 
trict. The  experience  of  the  last  eight  years  has  shown  that  court 
and  yard  requirements,  coupled  with  regulations  of  percentage  of 
lot  covered,  are  not  sufficiently  adequate  to  prevent  too  great  con- 
gestion of  population.  Zoning  consultants  have  during  that  time 
developed  as  part  of  the  area  regulations  graded  requirements  of 
families  per  acre,  square  feet  of  lot  per  family  and  families  per 
foot  of  street  frontage.  These  requirements,  coupled  with  court 
and  yard  provisions  and  limitation  of  percentage  of  lot  covered, 
are  undoubtedly  much  more  adequate  in  bringing  about  a  reason- 
able distribution  of  population.  Ingenious  builders  gradually 
find  methods  of  crowding  too  many  families  into  a  given  space. 
There  is  little  doubt  that  the  best  way  to  prevent  this  is  to  regu- 
late according  to  the  number  of  families. 

Regulation  of  the  number  of  families  by  different  districts  on 
the  area  map  is  an  entirely  different  thing  from  placing  one- 
family  detached  house  districts  on  the  use  map.  In  the  latter 
case  there  is  no  relation  to  light  and  air  requirements.  A  house 
in  such  a  district  surrounded  by  a  ten-acre  lot  must  still  be  a  one- 
family  detached  house.  Not  so,  however,  where  the  number  of 
families  has  some  relation  to  the  amount  of  space  as  in  the  area 
map  requirements. 

New  York. —  It  will  be  difficult  to  alter  the  requirements  of  the 
present  area  districts  of  Greater  New  York.  The  building  de- 
partments and  builders  have  become  accustomed  to  them  and  the 
landowners  of  every  locality  will  be  likely  to  oppose  any  re- 
arrangement. The  best  way  to  approach  the  problem  is  to  amend 
the  charter  by  including  the  power  to  regulate  the  density  of 
population,  and  then  amend  the  zoning  resolution  by  adding  to 
the  requirements  of  each  area  district  respectively  appropriate 
provisions  for  square  feet  of  lot  per  family  and  street  frontage  per 
family.  The  same  course  should  be  pursued  in  connection  with 
cities  in  the  Region  outside  of  Greater  New  York.  A  provision 
for  families  per  acre  is  already  in  the  ordinances  of  White  Plains, 
Yonkers  and  New  Rochelle,  and  if  the  general  city  law  is  amended 
by  providing  for  regulation  of  the  density  of  population  there 
should  not  be  any  court  criticism  such  as  occurred  in  the  recent 
New  Rochelle  case.1  These  gradations  can  now  be  inserted  for 
1  Matter  of  Barker  v.  New  Rochelle,  209  App.  Div.  151  (N.  Y.,  1924). 

18 


area  districts  in  villages  inasmuch  as  the  village  law  provides  for 
regulation  of  density  of  population.  An  enabling  act  for  zoning 
in  towns  and  towns  outside  of  villages  and  cities  will  undoubtedly 
be  introduced  in  the  next  session  of  the  New  York  legislature  and 
the  words  "density  of  population"  will  be  inserted. 

New  Jersey. — A  large  number  of  zoning  ordinances  in  this 
state  have  provided  for  limiting  families  per  acre.  The  old  zoning 
enabling  acts  did  not  include  the  words  "density  of  population," 
but  the  new  enabling  act  passed  in  1924  contains  this  necessary 
provision.  Inasmuch  as  existing  ordinances  are  expressly  vali- 
dated under  the  new  enabling  act  it  is  considered  that  the  existing 
families  per  acre  provisions  have  been  rendered  valid.  Munici- 
palities in  this  state,  which  may  be  zoned  hereafter,  should  con- 
tain provisions  for  limitation  per  family  as  above  stated. 

Connecticut. — The  incomplete  enabling  act  of  this  state  does 
not  provide  for  regulation  of  density  of  population.  West  Hart- 
ford is  the  only  municipality  that  has  thus  far  adopted  an  or- 
dinance under  this  act,  and  this  ordinance  provides  for  area 
limitations  according  to  square  feet  of  lot  per  family.  It  is  fairly 
likely  that  the  liberal  attitude  of  the  courts  of  this  state  regarding 
the  police  power  will  cause  these  provisions  to  be  upheld.  There 
should  be  no  delay,  however,  in  the  adoption  of  a  complete 
zoning  enabling  act  in  this  state  and  provision  should  be  inserted 
for  regulating  the  density  of  population. 

VI.  DUMPING 

This  term  is  applied  to  the  practice  of  prohibiting  within  the 
limits  of  a  municipality  those  uses  which  a  community  needs,  but 
would  prefer  to  have  inflicted  on  some  other  community.  Dump- 
ing is  not  fair  to  the  municipality  which  is  made  the  dumping 
ground  for  neighboring  communities  that  first  adopt  zoning 
ordinances.  There  can  be  no  sound  regional  planning  where 
unzoned  localities  can  be  filled  with  outcast  uses.  Examples  are 
garbage  incinerators,  livery  stables,  garages,  automobile  repair 
shops,  laundries  and  carpet  cleaning  works.  Reasonable  com- 
prehensive zoning  requires  that  a  municipality  should  find  within 
its  own  limits  suitable  localities  for  the  conduct  of  its  own  business 
and  such  industries  as  usually  go  with  civilized  communities. 
The  courts  will  not  hesitate  to  declare  that  it  is  unreasonable  to 
exclude  an  undesired  use  simply  because  it  may  seem  more  ap- 
propriate in  the  next  town.   Cities  differ  in  their  natural  and  ac- 

19 


quired  characteristics.  It  cannot  be  doubted  that  some  are 
especially  suitable  for  high-class  residences  and  others  for  smaller 
homes  and  industries.  Nevertheless  it  is  a  mistake  to  practice 
dumping.  Appropriate  places  can  be  found  in  every  munici- 
pality for  its  own  accessory  uses.  If  some  surrounding  community 
wants  these  industries  and  is  better  adapted  for  them,  then  the 
first  city  can  set  aside  smaller  areas,  but  it  ought  not  to  practice 
exclusion. 

When  we  come  to  industries  not  needed  by  the  community, 
such  as  fertilizer  works,  chemical  plants  and  refineries,  there  is 
much  to  be  said  concerning  the  propriety  of  excluding  these  uses 
from  residential  communities. 

Residential  cities  in  New  Jersey  and  in  the  counties  north  of 
New  York  City  have  sometimes  desired  to  employ  zoning  to  keep 
out  hospitals  and  other  charitable  institutions.  They  assert  that 
such  institutions  are  often  undesirable  neighbors.  Undesirability 
as  neighbors  will  not  warrant  exclusion  by  the  exercise  of  the 
police  power,  nor  is  it  lawful  to  exclude  some  of  these  institutions 
and  allow  others  of  the  same  sort.  No  way  has  been  discovered 
by  which  the  police  power  can  be  employed  to  exclude  an  un- 
desired  surplus  of  any  kind  of  building  or  use.  Some  communi- 
ties also  complain  that  an  increased  and  improper  burden  for  the 
support  of  the  city  is  forced  upon  the  non-exempt  taxpayers  by 
reason  of  the  large  land  areas  that  are  held  by  these  tax-exempt 
institutions.  Exemption  from  taxation,  however,  is  not  a  basis 
for  exclusion  by  zoning.  The  remedy  must  be  found,  if  found  at 
all,  in  some  other  reason  for  exclusion. 

Every  municipality  should  have  a  suitable  place,  even  if  it  is 
sometimes  a  very  small  place,  for  every  use  that  is  not  an  actual 
danger  or  nuisance.  Especially  must  it  provide  some  space  for 
its  own  accessory  industries.  If  it  does  not  do  so,  there  is  danger 
that  it  will  be  invaded  by  the  very  use  which  it  tries  to  exclude. 
Some  property  owner  may  show  the  court  that  the  ordinance 
unreasonably  excludes  from  the  entire  municipality  a  certain 
necessary  use,  and  thereupon  the  court  may  not  only  declare  that 
the  exclusion  is  unreasonable  and  void,  but  may  allow  the  hurtful 
structure  or  use  in  a  place  where  it  causes  great  injury. 

VII.    FRONT  YARDS 
A  zoning  consultant  can  hardly  begin  his  work  in  any  city  be- 
fore he  is  asked  how  to  create  setback  lines  that  will  keep  builders 


20 


from  projecting  their  buildings  in  front  of  other  structures  or  to 
the  street  line.  Within  the  Region  are  many  villages  and  cities 
where  the  structures  are  so  largely  built  flush  with  the  street  line 
that  it  is  almost  hopeless  to  improve  the  older  portions.  It  is 
difficult  to  blame  individual  owners  for  this  result.  Where  there 
are  no  binding  regulations  on  this  subject  a  builder  is  often 
penalized  if  he  sets  his  building  back  from  the  street,  because  there 
is  nothing  to  prevent  his  neighbors  from  building  to  the  street  line 
and  thus  pocketing  and  injuring  the  structure  of  the  first  and 
more  generous  builder. 

Efforts  were  early  made  in  various  parts  of  what  is  now  Greater 
Xew  York  to  afford  some  remedy.  The  device  hit  upon  was  to 
create  courtyards  which  were  strips  of  street  land  not  available 
for  roadway  or  sidewalk  and  on  which  the  main  building  could 
not  be  constructed.  Sometimes  fences  and  stoops  were  allowed 
within  this  courtyard  strip.1  These  strips  were  always  considered 
parts  of  the  street,  but  in  some  cases  they  were  not  specifically 
included  within  the  street  area  and  were  merely  designated  as 
open  strips  of  private  property  that  could  not  be  built  upon. 
The  courts,  however,  quite  invariably  said  that  they  were  parts 
of  streets,  and  insisted  that  the  city  must  employ  eminent  domain 
to  establish  them.2  Court  decisions  to  this  effect  have  been  so 
emphatic  and  unvarying  that  in  New  York  and  New  Jersey  at 
least  the  courts  will  undoubtedly  be  prone  to  consider  that  any 
creation  of  a  courtyard  under  the  police  power  is  an  indirect  way 
of  widening  a  street.  The  compulsory  establishment  of  streets 
has  been  so  long  within  the  exclusive  field  of  eminent  domain  that 
the  courts  can  hardly  be  blamed  for  their  inclination  to  adhere  to 
past  customs. 

On  the  other  hand,  the  courts  have  freely  recognized  that  the 
police  power  can  be  resorted  to  for  required  courts,  side  yards  and 
back  yards.3  Such  requirement  of  open  spaces  prevents  conges- 
tion, allows  the  entrance  of  light  and  air  and  affords  greater  safety 
against  conflagration  by  giving  access  to  fire-fighting  apparatus. 

These  two  tendencies  of  the  courts  (the  one  to  insist  that  any 
indirect  street  widening  should  be  by  condemnation  and  the 
other  to  recognize  the  legality  of  requirements  for  courts  and 
yards)  were  well  established  before  the  days  of  modern  zoning. 

1  Matter  of  Lafayette  Avenue,  118  Misc.  161  (N.  Y.,  1922). 

2  Matter  of  Clinton  Avenue,  57  App.  Div.  166  (N.  Y.,  1901). 

3  People  ex  rel.  Kemp  v.  D'Oench,  111  N.  Y.  359  (1888). 


21 


Now  that  setbacks  are  authorized  in  some  enabling  acts  and 
many  cities  are  introducing  compulsory  street  setbacks  into  their 
zoning  ordinances,  some  officials  consider  that  a  way  has  been 
discovered  to  accomplish  something  under  the  police  power  with- 
out payment  to  take  the  place  of  what  formerly  could  be  accom- 
plished only  by  condemnation  and  payment. 

The  first  police  power  front-yard  requirement  in  the  zoning  of 
Greater  New  York  was  introduced  in  F  districts  on  the  area  map. 
New  buildings  were  compelled  to  set  back  fifteen  feet  from  the 
street  line.  Somewhat  later  the  E  district  requirements  were 
amended  so  that  a  new  building  in  that  district  was  compelled  to 
set  back  ten  feet  from  the  street  line.  These  new  front-yard 
requirements  have  not  been  tested  in  court,  but  they  are  so 
reasonable  in  extent  and  so  plainly  linked  up  with  requirements 
of  open  construction  that  the  courts  will  be  likely  to  uphold  them. 
Then,  too,  they  are  not  placed  on  districts  like  B,  C  and  D,  where 
closer  construction  is  allowed. 

This  brings  us  to  the  question  of  where  the  danger  line  can  be 
drawn.  Some  cities,  largely  outside  of  the  Region,  are  inserting 
front-yard  requirements  of  forty,  fifty  and  sixty  feet  in  their 
zoning  ordinances.  No  heed  is  paid  to  the  limitations  of  the 
police  power.  No  subject  in  zoning  is  more  difficult,  and  probably 
more  mistakes  are  being  made  in  this  particular  zoning  field  than 
in  any  other. 

In  the  first  place  it  is  probably  better  to  call  this  form  of  regula- 
tion front-yard  requirements  instead  of  setbacks.  Building  laws 
before  the  days  of  zoning,  and  more  recently  nearly  all  zoning 
ordinances,  have  freely  provided  for  necessary  courts,  side  yards 
and  rear  yards.  Why  not  follow  the  same  wording  and  use  the 
term  "front  yards"?  The  word  "setback"  seems  to  contain  an 
indirect  intention  to  widen  a  street  or  prepare  for  a  future  widen- 
ing. If  the  front-yard  requirement  is  to  be  based  on  the  police 
power,  this  intention  should  be  absent.  The  reason  for  the  front- 
yard  requirement  should  be  the  health,  safety,  morals  and  general 
welfare  of  the  community.1 

The  main  consideration,  however,  is  to  frame  the  front-yard 
requirement  so  that  it  will  have  a  relation  to  health  and  safety. 
It  should  take  into  account  the  proposed  use  of  the  lots  whether 

1  Zahn  v.  Board  of  Public  Works,  Los  Angeles,  District  Court  of  Appeal, 
Second  Appellate  District,  Division  One,  Calif.,  Mar.  20,  1924. 
Town  of  Windsor  v.  Whitney,  95  Conn.  357  (1920). 


22 


business  or  residence,  the  width  of  the  street,  the  amount  and 
kind  of  traffic  and  probably  the  location  of  existing  buildings.  A 
50-foot  residential  street  used  only  for  local  traffic  might  well 
warrant  a  front-yard  requirement  of  25  feet.  This  would  separate 
the  opposite  house  fronts  by  100  feet.  If,  however,  the  street 
were  100  feet  wide  and  used  only  for  local  traffic,  the  court  might 
well  consider  that  it  was  not  equally  justifiable  to  make  the  front- 
yard  requirement  25  feet,  as  this  would  cause  the  opposite  house 
fronts  to  be  150  feet  apart.  Such  a  wide  street,  however,  would 
usually  be  a  through  traffic  street  and  in  this  case  the  dust,  noise 
and  fumes  might  justify  a  front-yard  requirement  of  even  more 
than  25  feet.  Then,  too,  where  a  block  front  is  almost  entirely 
built  up  with  structures  flush  with  the  street  line,  it  would  be 
unreasonable  to  impose  any  front-yard  requirement. 

The  ideal  arrangement  for  front-yard  requirements  would  be 
the  preparation  of  a  separate  map  showing  front-yard  require- 
ments on  all  the  frontages  in  the  city.  Such  maps  have  actually 
been  prepared  for  a  few  cities,  but  usually  the  front-yard  require- 
ments are  provided  for  each  kind  of  area  district.  It  is  evidently 
difficult  to  make  the  same  requirement  reasonable  regardless  of 
the  width  of  streets  or  the  kind  of  traffic.  Two  dangers  confront 
the  engineer — one,  that  any  front-yard  requirements  will  be  un- 
reasonable because  of  existing  buildings  already  built  on  or  near 
the  street  line,  and  next  that  in  open  building  districts  too  great 
a  requirement  will  be  unreasonable  because  some  certain  street 
may  be  broad  but  not  a  main  traffic  artery. 

To  prevent  the  unreasonable  application  of  the  requirement 
where  existing  buildings  are  flush  with  the  street  line  or  nearly  so, 
many  cities  have  provided  that  the  requirement  shall  not  operate 
to  keep  the  new  structures  further  back  than  the  average  of  the 
old.1  It  cannot  be  denied  that  this  plan  has  thus  far  worked  out 
quite  well,  although  it  is  open  to  the  objection  that  the  destruc- 
tion of  part  of  the  existing  houses  or  the  erection  of  a  number  of 
new  houses  will  alter  the  average  and  therefore  alter  the  require- 
ment. Such  changeable  or  travelling  regulations  should  not  be 
used  if  they  can  well  be  avoided. 

The  temptation  to  make  the  requirement  too  great,  especially 
on  high-class  residential  streets,  constantly  results  in  latent 

1  In  re  Permit  to  American  Reduction  Co.,  Municipal  Law  Rep.  (Pennsyl- 
vania), Vol.  15,  No.  8,  April,  1924  (Court  of  Common  Pleas,  Allegheny  County, 
Pittsburgh). 


23 


dangers.  Any  thirty,  forty  or  fifty  foot  front-yard  requirement  on 
a  wide  residence  street  used  only  for  local  traffic  is  vulnerable  be- 
cause the  courts  may  be  unable  to  see  how  so  drastic  a  require- 
ment is  related  to  the  health,  safety,  morals  or  general  welfare. 
It  would  therefore  seem  to  be  the  part  of  wisdom  to  make  these 
requirements  moderate  in  extent.  They  should  be  capable  of 
justification  under  considerations  of  health,  safety  and  morals. 
If  local  residents  demand  front-yard  requirements  that  cannot  be 
justified  along  these  lines,  they  should  be  instructed  to  employ 
contractual  restrictions. 

VIII.    BOARD  OF  APPEALS 

There  is  no  need  of  mentioning  the  board  of  appeals  in  the 
ordinance.  Its  membership,  appointment,  powers,  procedure  and 
the  court  review  of  its  decisions  all  depend  upon  the  state  enabling 
act  for  zoning.  Consequently  there  is  no  need  of  repeating  these 
matters  in  whole  or  in  part  in  the  ordinance. 

This  statement  is  made  in  order  to  emphasize  the  fact  that  all 
the  main  provisions  and  functions  of  the  board  of  appeals  are 
independent  of  the  ordinance  itself.  The  safety  valve  function  of 
the  board  of  appeals,  i.  e.,  the  granting  of  variances  in  cases  of 
practical  difficulty  and  unnecessary  hardship,  must  be  completely 
provided  for  in  the  enabling  act.  No  ordinance  could  enumerate 
all  the  particular  instances  that  can  arise  under  this  definition. 
The  unexpected  arises  more  often  than  the  expected.  It  would 
be  a  mistake  to  try  to  print  every  possible  situation  which  might 
constitute  a  practical  difficulty  or  unnecessary  hardship.  Even 
if  the  ordinance  prescribes  a  thousand  situations,  some  case  would 
arise  within  a  month  that  could  not  be  classified  under  any  of 
them,  and  if  the  case  went  to  court  the  court  would  be  likely  to 
decide  that  the  emergency  situation  was  unreasonable  and  arbi- 
trary as  to  the  property  owner  and  that  therefore  the  application 
of  the  zoning  ordinance  in  that  instance  was  void.  What  is  de- 
sired is  to  prevent  all  instances  of  unreasonableness  by  giving  the 
board  of  appeals  an  opportunity  to  vary  under  a  rule,  to  give 
every  property  owner  his  day  before  a  tribunal  if  he  conceives 
that  he  is  treated  arbitrarily,  and  then  to  give  the  courts  an  op- 
portunity to  review  the  decision  of  the  board  of  appeals.  All  the 
machinery  to  accomplish  this  is  embodied  in  the  enabling  act,  and 
every  property  owner  can  have  recourse  to  it  whether  the  board 
of  appeals  is  mentioned  in  the  ordinance  or  not. 

24 


It  frequently  happens,  however,  that  a  city  desires  to  permit 
certain  non-conforming  buildings  or  uses  under  circumstances  that 
will  be  non-injurious  to  neighbors  and  greatly  advantageous  to 
the  property  owner.  This  is  quite  a  different  class  of  applications 
from  those  arising  in  situations  which  involve  practical  difficulty 
or  unnecessary  hardship.  They  are  capable  of  precise  definitions 
in  the  ordinance  itself.  No  two  cities  have  the  same  require- 
ments in  this  respect.  The  situation  of  any  two  municipalities 
regarding  large  public  garages,  for  instance,  is  quite  apt  to  be 
different  although  certain  important  principles  apply  to  this  class 
of  erection  in  all  cases.  Accordingly  nearly  every  city  enumerates 
in  its  zoning  ordinance  those  particular  instances  where  certain 
non-conforming  buildings  can  be  permitted  in  the  discretion  of 
the  board  of  appeals.  It  is  a  comparatively  unimportant  function 
of  the  board.  It  is,  however,  the  only  function  that  must  be 
defined  in  the  ordinance  itself.  Because  it  has  been  found  desir- 
able to  insert  these  instances  in  ordinances,  the  enabling  act 
provides  that  the  council  can  enumerate  the  instances  and  that 
the  board  of  appeals  has  the  power  to  decide  such  matters  as  are 
referred  to  it  in  the  ordinance.  Strictly  speaking,  therefore,  these 
referred  matters  come  to  the  board  of  appeals  not  on  appeal  from 
the  building  commissioner,  but  as  matters  invoking  the  original 
jurisdiction  of  the  board  of  appeals.  In  common  practice,  how- 
ever, all  applications  are  usually  first  made  to  the  building  com- 
missioner and  the  subject  matter  comes  as  if  on  appeal  to  the 
board  of  appeals.  It  should  be  kept  in  mind,  however,  that  the 
matters  instanced  and  enumerated  in  the  ordinance  are  matters 
of  original  jurisdiction,  and  that  variances  from  the  strict  letter 
of  the  ordinance  and  maps  come  to  the  board  of  appeals  only  on 
appeals. 

This  particular  subject  constantly  causes  so  much  confusion  in 
the  drafting  of  ordinances,  to  say  nothing  of  being  the  cause  of 
incomplete  and  unworkable  zoning  enabling  acts,  that  this  de- 
tailed analysis  is  perhaps  warranted. 

The  analysis,  moreover,  helps  us  to  perceive  what  kind  of  in- 
stances should  be  specified  in  the  ordinance  itself.  Examples  of 
proper  instances  to  be  specified  in  ordinances  are  extensions  of 
buildings  on  original  lots,  public  utility  buildings  in  residence 
districts,  garages  for  more  than  three  cars  in  business  districts, 
80%  consent  garages  and  temporary  uses  in  undeveloped  sec- 
tions. 


25 


The  confusion  caused  by  inserting  improper  items  in  the 
ordinance  itself  is  shown  in  paragraph  b  of  §7  of  the  Greater  New 
York  zoning  resolution.  This  was  as  follows: 

"  (b)  Where  a  use  district  boundary  line  divides  a  lot  in  a  single 
ownership  at  the  time  of  the  passage  of  this  resolution  (the  board 
of  appeals  may)  permit  a  use  authorized  on  either  portion  of  such 
lot  to  extend  to  the  entire  lot,  but  not  more  than  25  feet  beyond 
the  boundary  line  of  the  district  in  which  such  use  is  authorized." 

It  soon  appeared,  however,  that  in  some  exceptional  cases  more 
than  25  feet  should  be  allowed,  and  consequently  paragraph  c 
was  added  as  an  amendment.   Here  is  paragraph  c: 

"  (c)  (The  board  of  appeals  may)  Permit  the  extension  of  an 
existing  or  proposed  building  into  a  more  restricted  district  under 
such  conditions  as  will  safeguard  the  character  of  the  more  re- 
stricted district." 

Both  provisions  now  remain  in  the  resolution  and  cause  con- 
fusion where  their  history  is  not  known.  As  a  matter  of  fact, 
neither  b  nor  c  is  necessary  or  proper  in  the  enumerated  items. 
They  assume  to  cover  an  exceptional  situation  which  is  only  one 
of  thousands  which  are  sure  to  arise  and  which  under  the  power 
to  vary  in  cases  of  practical  difficulty  and  unnecessary  hardship 
the  board  of  appeals  has  the  power  to  adjust  in  a  way  that  is 
reasonable  for  the  property  owner  and  upon  conditions  that  will 
safeguard  the  character  of  the  more  restricted  district.  The  ad- 
ministration of  the  New  York  resolution  would  have  been  more 
clear-cut  since  the  beginning  if  these  two  paragraphs  had  been 
omitted. 


26 


PART  II 


APPLICATION  OF  ZONING  IN  NEW  YORK 

CITY 

I.    PROCEDURE  IN  PREPARING  ORDINANCE 

THE  first  comprehensive  zoning  ordinance  prepared  in  the 
United  States  under  the  police  power  was  established  in 
Greater  New  York  on  July  25,  1916.  The  state  legislature 
granted  to  the  Board  of  Estimate  of  Greater  New  York  the  power 
to  regulate  the  height,  area  and  use  of  buildings.  Pursuant  to 
this  grant,  the  Board  of  Estimate  enacted  the  Zoning  Resolution 
of  1916.  During  the  intervening  eight  years  experience  has 
proved  the  wisdom  of  the  City  of  New  York  in  initiating  the 
legislation  and  applying  the  zoning  regulations  that  were  designed 
to  lessen  the  excessive  height  and  undue  density  of  buildings  and 
prevent  them  being  put  to  uses  that  would  be  injurious  to 
health,  safety  or  public  welfare. 

The  zoning  ordinance  in  New  York  City  was  prepared  by  a 
Commission  on  Building  Districts  and  Regulations,  appointed  by 
the  Board  of  Estimate.  Under  its  original  title  it  made  a  thorough 
study  of  the  future  needs  of  the  city,  and  as  a  result  decided  that 
under  the  police  power  use  districts  should  be  as  few  as  possible 
and  should  come  under  the  three  heads  of  residence,  business  and 
unrestricted.  Localities  near  waterways,  railroads,  switch  con- 
nections and  present  industries  were  placed  in  industrial  districts, 
and  sufficient  areas  were  thus  designated  to  provide  for  the  future 
industry  of  the  city  for  two  or  three  generations  to  come.  In 
addition  to  these  large  unrestricted  districts,  small  sections  of 
area  were  left  unrestricted  where  stables,  garages,  breweries  or 
certain  trades  had  been  built  in  juxtaposition  to  residence  dis- 
tricts. 

Other  areas  were  marked  as  business  districts  fronting  on 
streets  throughout  the  city  which  were  already  somewhat  or 
largely  dedicated  to  business.  To  these  were  added,  as  a  rule, 
the  frontage  land  on  trolley  car  streets  and  traffic  thoroughfares, 

27  . 


and  other  streets  that  seemed  to  be  rightly  located  for  business 
purposes.  The  intent  was  to  provide  business  streets  within  a 
reasonable  walk  of  every  residential  plot  or  area,  so  as  to  avoid 
any  objection  to  the  regulation  on  the  ground  that  business 
premises  were  at  an  unreasonable  distance  from  the  residences. 

Having  proceeded  by  this  process  of  elimination,  all  the  re- 
maining areas  were  left  as  residential.  The  result  of  this  proced- 
ure of  course  meant  that  there  were  areas  designated  for  resi- 
dential purposes  which  might  later  be  required  to  be  allocated  for 
business  purposes.  In  the  main,  however,  it  has  been  found  that 
business  has  gone  to  the  streets  which  were  designated  for  busi- 
ness. It  was  recognized  that  doubtful  territory  should  be  left  in 
residence,  because  residences  mainly  needed  protection.  Certain 
localities  that  had  not  shown  distinct  tendencies  in  any  direction 
were  marked  undetermined.  These  localities  were  mainly  in  the 
southern  part  of  Staten  Island,  all  of  Jamaica  Bay,  and  a  few 
other  places.  One  of  the  urgent  needs  in  connection  with  zoning 
in  the  City  of  New  York  today  is  to  extend  the  use  map  so  as  to 
provide  appropriate  and  adequate  regulations  over  these  areas 
that  were  left  undetermined.  It  is  admitted  that  the  procedure 
and  method  of  approach  were  not  what  might  be  called  scientific. 
No  doubt  this  was  partly  due  to  the  novelty  of  zoning  in  this 
country  at  the  time  it  was  introduced,  but  it  was  also  due  to  the 
fact  that  in  dealing  with  the  dynamic  conditions  of  the  city  shrewd 
common  sense  may  be  more  likely  to  produce  satisfactory  results 
than  attempts  to  achieve  theoretical  perfection  on  the  basis  of 
accurate  or  presumably  accurate  data. 

II.  ELEMENTS  OF  SUCCESS 
The  success  of  zoning  in  New  York  has  been  due  very  largely 
to  four  things.  The  first  of  these  is  that  no  attempt  was  made  to 
impose  anything  in  the  nature  of  an  unreasonable  restriction.  It 
has  come  to  be  seen  that  this  is  a  proper  attitude,  for  the  result 
has  been  that  zoning  has  become  firmly  entrenched  in  the  law 
and  practice  of  the  city  and  that  strengthening  will  be  a  matter  of 
evolution  toward  a  higher  quality  of  zoning.  The  second  merit 
of  the  New  York  ordinance  was  the  provision  it  made  for  an 
appeal  by  the  applicant  for  a  permit  to  a  board  of  appeals  for  a 
variance  from  the  strict  letter  of  the  law,  thereby  providing  a 
safety  valve  for  the  prevention  of  arbitrariness.  In  the  third 
place,  success  has  been  made  possible  because  of  the  facility  with 

28 


which  needed  changes  in  the  zoning  maps  can  be  made  by  the 
Board  of  Estimate.  A  fourth  reason  for  successful  administra- 
tion has  been  the  educational  work  carried  on  by  the  Zoning 
Committee  of  New  York.  This  committee  consists  of  public- 
spirited  citizens  who  are  interested  in  maintaining  the  integrity 
of  the  New  York  zoning  and  in  giving  information  to  people  out- 
side as  well  as  inside  of  New  York  on  the  subject.  These  elements 
of  success,  comprising  reasonableness,  liberty  of  appeal,  flexibility, 
and  education,  are  essential  to  the  permanence  of  all  zoning. 

HI.  ZONING  CLASSIFICATIONS 
The  Zoning  Resolution  in  New  York  defines  the  regulations 
and  three  maps,  one  showing  allowable  heights  in  different  parts 
of  the  city,  one  showing  allowable  cover  of  lots,  and  one  showing 
allowable  uses.  The  use  districts  are  residence,  business  and 
unrestricted.  The  area  districts  are  classified  as  A,  B,  C,  D,  Eand 
F.  A  districts  are  primarily  for  warehouses  and  industrial  build- 
ings; B  districts  for  office,  business  and  apartment  buildings;  C 
districts  for  non-elevator  apartment  houses;  D  districts  for  one- 
and  two-family  private  residences  in  blocks;  E  districts  for 
private  residences  where  new  buildings  may  not  cover  over  30% 
of  the  lot;  and  F  districts  for  private  detached  residences  cover- 
ing not  over  25%  of  the  lot.  Most  of  the  restricted  areas  in  E 
zones  and  all  in  the  F  zones  have  been  placed  there  on  the 
petition  of  property  owners. 

The  restrictions  on  density  vary  from  100%  in  the  A  zones  to 
25%  in  the  F  zones.  In  regard  to  heights,  the  maximum  height 
varies  from  once  the  width  of  the  street  in  the  outlying  parts  of 
the  city  to  the  maximum  of  2 >4  times  the  street  width  in  the  lower 
part  of  Manhattan. 

The  resolution  is  not  retroactive;  consequently  buildings  and 
uses  in  existence  prior  to  July  25,  1916,  are  not  affected.  Every 
borough  is  zoned  on  the  three  maps.  The  Board  of  Estimate  can 
amend  the  resolution  and  maps,  and  does  so  on  petition  at  almost 
every  meeting.  The  building  commissioners  will  not  issue  per- 
mits unless  the  plans  of  proposed  buildings  or  alterations  conform 
to  the  zoning  resolution.  As  many  exceptional  situations  exist 
in  the  diverse  field  of  buildings,  and  as  no  words  or  maps  could 
provide  for  all  these  exceptions,  the  city  charter  provides  that  a 
board  of  appeals  can,  after  a  hearing  and  in  accordance  with 
prescribed  rules,  vary  the  strict  letter  of  the  law  regarding  par- 

29 


ticular  permits.  Its  decisions  are  subject  to  court  review.  No 
decision  of  any  court  has  criticized  the  New  York  zoning  resolu- 
tion or  declared  it  invalid  in  any  particular. 

IV.  CHANGES  IN  ZONING  MAPS 
For  the  first  four  years  the  changes  authorized  by  the  Board  of 
Estimate  and  Apportionment  were  mostly  in  the  form  of  relaxing 
amendments  to  the  maps.  Because  these  greatly  exceeded  the 
strengthening  amendments,  there  was  a  fear  that  the  regulations 
would  be  levelled  down  until  the  protective  qualities  of  the  zoning 
plan  were  largely  lost.  A  study  of  the  figures,  however,  shows 
that,  although  the  relaxing  changes  were  greater  than  the  strength- 
ening changes  for  the  first  four  years  of  the  law,  there  was  a 
yearly  increase  of  the  strengthening  changes  during  that  time. 
This  upward  curve  continued  until  in  1920  the  strengthening 
changes  outnumbered  the  relaxing.  This  increase  of  the  strength- 
ening changes  has  continued  until  in  1923  the  figures  seem  to  be 
rather  well  stabilized  at  three  strengthening  changes  for  one 
relaxing  change.  Here  are  the  figures  for  all  the  years  that  zoning 
has  been  in  force  in  this  city.  In  1916  there  were  no  strengthening 
changes;  in  1917  the  strengthening  changes  were  16%  of  the 
total;  in  1918,  23%;  in  1919,  35%;  in  1920,  56%;  in  1921,  61%; 
in  1922,  77%;  and  in  1923,  77%. 

These  proportions  show  that  the  zoning  plan  had  a  vitality 
which  was  little  suspected  at  the  beginning.  They  show  that,  as 
property  owners  become  more  familiar  with  the  protection 
afforded  by  zoning,  their  tendency  is  to  petition  the  Board  of 
Estimate  for  an  increase  of  that  protection.  In  the  main  these 
changes  are  brought  about  by  property  owners  themselves,  for 
the  Board  of  Estimate  seldom  refuses  to  make  a  change  where  the 
property  owners  set  forth  a  good  case.  The  Board  of  Estimate, 
however,  through  its  Chief  Engineer  and  the  local  boards  of  the 
various  boroughs,  makes  careful  investigation  in  order  to  be  sure 
that  the  proposed  change  will  not  injure  the  city  as  a  whole. 

The  experience  of  eight  years  has  proved  that  the  protective 
features  of  the  zoning  law  largely  outweigh  its  drawbacks.  It 
does  not  prevent  proper  changes  of  use,  height  and  bulk,  but 
allows  these  changes  to  come  along  when  the  locality  is  ripe  for  a 
change  instead  of  having  the  change  brought  prematurely  by  two 
or  three  exploiters  who,  for  the  sake  of  their  own  profits,  bring 
disaster  upon  a  multitude  of  honest  investors. 

30 


.    TABULATION  OF  ZONING  MAP  CHANGES  IN  NEW  YORK 

IN  1923 

(1)  Amendments  adopted   81 

(2)  Height  amendments  adopted   3 

(3)  Percentage  (2)  of  (1)   4% 

(4)  Area  amendments  adopted   10 

(5)  Percentage  (4)  of  (1)   12% 

(6)  Use  amendments  adopted   68 

(7)  Percentage  (6)  of  (1)   84% 

(8)  Height  strengthening  amendments  adopted   1 

(9)  Percentage  (8)  of  (2)   33% 

(10)  Area  strengthening  amendments  adopted   9 

(11)  Percentage  (10)  of  (4)   90% 

(12)  Use  strengthening  amendments  adopted   52 

(13)  Percentage  (12)  of  (6)   76% 

(14)  Total  strengthening  amendments  adopted   62 

(15)  Percentage  (14)  of  (1)   77% 

(16)  Total  relaxing  amendments  adopted   19  , 

(17)  Percentage  (16)  of  (1)   23% 

(18)  Percentage  (14)  of  (16)   326% 


31 


PART  III 


A  FORM  OF  STATE  ENABLING  ACT 
FOR  ZONING 

ZONING  under  the  police  power  has  become  the  recognized 
method  of  applying  community  planning  to  privately 
owned  land.  As  the  state  legislature  is  the  repository  of 
the  police  power  it  must  grant  powers  with  suitable  checks  to 
municipal  corporations  before  they  can  adopt  and  administer 
zoning  ordinances.1  The  following  form  of  a  state  enabling  act  is 
primarily  designed  for  use  in  the  three  states,  New  York,  New 
Jersey  and  Connecticut,  parts  of  which  are  within  the  region. 
Suitable  changes  must  be  made  to  adapt  it  to  particular  classes 
of  municipalities,  although  it  is  desirable  to  have  a  single  enabling 
act  apply  to  all  municipalities  so  far  as  possible.  The  check  of 
the  twenty  per  cent  protest  and  the  safeguard  of  the  board  of 
appeals  provisions  are  as  necessary  for  the  small  village  as  for  the 
great  city.  The  application  of  any  zoning  plan,  however  perfect, 
will  be  arbitrary  in  certain  exceptional  instances,  and  if  the  plan 
cannot  be  adjusted  by  a  board  of  appeals  to  prevent  arbitrariness, 
the  courts  are  likely  to  declare  it  void  in  that  particular  respect. 

Inadequate  state  enabling  acts  are  largely  responsible  for  court 
decisions  adverse  to  zoning.  No  one  of  the  three  states  named 
has  adequate  enabling  acts.  The  village  law  of  New  York  and 
the  New  Jersey  zoning  act  of  1924  probably  contain  the  best  pro- 
visions.  Other  states  will  find  this  form  useful. 

The  form  follows  established  lines.  It  is  not  claimed  to  be 
original  except  to  a  slight  extent,  but  it  takes  advantage  of  all 
that  has  gone  before,  including  efforts  in  all  of  the  states  and  the 
most  recent  court  decisions. 

1  Opinion  of  Justices,  127  N.  E.  525  (Mass.,  1920). 

Cliffside  Park  Realty  Co.  v.  Borough  of  Cliffside  Park,  114  Atl.  797  (N.  J., 
1921). 

Fitzhugh  v.  City  of  Jackson,  97  So.  190  (Miss.,  1923). 
City  of  St.  Louis  v.  Evraiff ,  256  S.  W.  489  (Mo.,  1923) ;  see  also  pp.  474 
and  495. 


32 


FORM  OF  STATE  ENABLING  ACT 


Section  1.  Grant  of  Power. — For  the  purpose  of  promoting  the 
health,  safety,  morals  or  the  general  welfare  of  the  community,1 
the  legislative  body  of  cities  and  incorporated  villages  is  hereby 

1  "Promoting  the  health,  safety,  morals  or  the  general  welfare  of  the  com- 
munity": This  statement  of  purpose  brings  the  subject  under  the  police 
power  of  the  state. 

Hadacheck  v.  Sebastian,  239  U.  S.  394  (1915). 

Anderson  v.  Steinway  &  Sons,  178  App.  Div.  507  (N.  Y.,  1917). 

Biggs  v.  Steinway  &  Sons,  229  N.  Y.  320  (1920). 

Lincoln  Trust  Co.  v.  Williams  Building  Corp.,  229  N.  Y.  313  (1920). 
Where  states  have  tried  to  empower  municipalities  to  zone  under  eminent 
domain,  confusion  has  ensued  and  usually  the  state  has  been  compelled  to 
change  the  law. 

State  of  Minnesota  ex  rel.  Twin  City  Bldg.  &  Inv.  Co.  v.  City  of  Minne- 
apolis, 176  N.  W.  159  (1919). 
Efforts  to  provide  for  compensation  spring  from  a  misconception  of  the  pur- 
pose of  zoning.  The  zoning  enabling  act  merely  grants  to  each  municipality 
the  police  power  to  regulate  the  height,  bulk  and  use  of  buildings.  The 
enabling  act  itself  cannot  possibly  be  unlawful  because  it  merely  grants  what 
the  legislature  possesses,  and  no  more.  If,  however,  a  municipality  employs 
this  grant  of  police  power  so  that  the  zoning  is  unreasonable  or  discriminatory 
toward  any  property  owner,  then  the  ordinance  in  that  particular  may  be  void. 
The  reason  it  is  void  is  because  the  state  and  federal  constitutions  provide 
that  no  person  shall  be  deprived  of  life,  liberty  or  property  without  due  pro- 
cess of  law.  If  the  municipality  should  employ  the  police  power  granted  it 
by  the  state  legislature  in  an  unreasonable  or  discriminatory  manner,  the 
courts  would  consider  that  the  citizen  was  deprived  of  his  property  without 
due  process  of  law,  and  consequently  such  provision  in  that  instance  would 
be  void. 

The  above  considerations  show  the  impropriety  of  provisions  for  compensa- 
tion. They  are  tantamount  to  saying  that,  where  a  zoning  provision  is  void, 
damages  must  be  paid  to  the  property  owner.  The  courts  will  protect  property 
owners  against  unreasonable  or  discriminatory  regulation.  Zoning  is  not 
taking  private  property  for  a  public  use.  Zoning  cannot  be  accomplished  under 
eminent  domain.  Accordingly  it  is  absurd  and  unworkable  to  make  a  provision 
for  money  payment  in  exactly  those  cases  where  the  courts  will  protect  the 
private  citizen  by  declaring  the  ordinance  void. 

But  someone  may  say  that  the  zoning  will  entail  injury  in  some  cases  even 
if  the  regulations  are  reasonable  and  non-discriminatory.  In  rare  instances 
this  may  be  true.  Sometimes  a  piece  of  property  might  be  better  off  if  it  were 
outside  of  the  fire  limits  instead  of  inside.  Or  a  man  could  make  more  money 
if  he  could  disregard  strength  of  beams,  sanitary  requirements  in  plumbing, 
or  fireproof  construction.  But  he  is  not  paid  money  damages  by  the  city  for 
these  minor  injuries  because  they  are  a  part  and  parcel  of  the  community 
health  and  safety  requirements.  For  the  prevention  of  the  spread  of  epi- 
demics, people  are  compelled  to  submit  to  some  impairment  of  their  property 
rights,  or  some  disturbance  of  their  personal  comfort,  but  this  is  in  the  interest 
of  the  safety  of  the  entire  community,  and  the  individual  cannot  collect  dam- 
ages against  the  city  or  state.  Each  citizen  is  obliged  to  give  up  somewhat  of 
the  absolute  control  of  his  own  property  in  order  that  the  property  of  all  may 
be  safeguarded.  His  recompense  for  this  is  that  he,  along  with  all  other  citi- 
zens, is  protected  by  reasonable  police  power  regulations. 

If  an  unreasonable  zoning  regulation,  coupled  with  a  provision  for  compensa- 
tion, appeared  to  injure  a  citizen  and  he  appealed  to  the  courts,  the  courts 
would  be  perplexed  as  to  whether  the  zoning  regulations  were  enforced  under 
eminent  domain,  or  whether  under  the  police  power.  The  court  would  refer 
to  the  enabling  act  and  discover  at  once  that  the  legislature  stated  that  the 


33 


empowered  to  regulate  and  restrict  the  height,1  number  of  stories 
and  size  of  buildings  and  other  structures,  the  percentage  of  lot 

zoning  is  enforced  under  the  police  power.  The  court  would  then  declare  the 
particular  provision  void  if  it  were  unreasonable.  The  litigant,  perhaps  having 
partly  erected  his  building,  would  want  damages  and  would  carry  on  appeals 
on  the  theory  that  he  could  choose  between  the  police  power  provisions  of  the 
law  and  the  eminent  domain  provision.  This  mixture  of  the  police  power  and 
eminent  domain  would  bring  about  an  endless  chance  for  litigation.  It  would 
be  hard  to  prophesy  how  the  courts  would  solve  it.  The  courts  endeavor  to 
give  effect  to  every  legislative  provision.  The  fault  would  not  be  the  fault  of 
the  courts  if  litigation  became  complex,  or  the  zoning  ordinance  became  un- 
workable. The  legislature  would  be  to  blame  for  creating  a  situation  which 
was  self-contradictory. 

If  a  city  should  make  payment  to  some  property  owner  who  claimed  to  be 
injured,  the  city  at  large  would  not  assume  this  expense  but  would  assess  it 
upon  the  property  benefited.  This  would  entail  two  separate  proceedings — 
one  proceeding  under  eminent  domain  to  ascertain  the  amount  of  the  damage 
and  another  proceeding  to  assess  it  on  the  property  benefited.  The  first  pro- 
ceeding would  be  expensive.  The  second  would  not  only  be  expensive  but  ex- 
tremely irritating  to  the  other  property  owners.  But  the  litigation,  expense 
and  delay  might  not  be  the  worst  result  of  this  mistaken  method.  After  a 
property  owner  had  received  from  the  public  purse  an  amount  of  money  to 
represent  his  damages,  the  public  would  have  obtained  by  eminent  domain  an 
easement  over  the  property.  The  property  owner  would  have  suffered  a 
diminution  of  his  complete  title.  This  diminution  or  easement  would  follow 
his  property  for  generations  or  centuries.  It  could  only  be  taken  off  by  another 
court  proceeding. 

A  succession  of  such  permanent  alterations  of  property  rights  scattered 
throughout  the  city  would  bring  about  an  impossible  and  unbearable  situation. 
The  growth  and  necessary  change  of  the  city  would  be  impaired  and  embar- 
rassed. Certain  pieces  of  property  could  not  be  used  for  the  natural  purposes 
for  which  the  growth  or  change  of  the  locality  made  them  desirable.  The  city 
would  gradually  become  ossified.  The  result  of  condemnation  is  permanent. 
The  exercise  of  the  police  power,  however,  without  any  admixture  of  eminent 
domain  is  easily  altered  as  circumstances  require.  This  alteration  is  accom- 
plished by  a  mere  amendment  to  the  zoning  ordinance  passed  by  the  city 
council. 

Wherever  a  state  legislature  has  mixed  police  power  and  eminent  domain  in 
a  zoning  enabling  act,  there  has  been  a  complete  stoppage  of  zoning.  The 
state  of  Minnesota  a  few  years  ago  passed  such  an  act.  Nothing  in  the  way  of 
zoning  was  done  until  it  was  repealed  and  a  police  power  enactment  substi- 
tuted in  its  place.  The  state  of  Wisconsin  attached  a  provision  for  compensa- 
tion to  its  first  zoning  enabling  act.  Nothing  was  done  under  it.  After  a 
while  it  was  amended  to  strike  out  the  provision  for  payment  of  damages,  and 
since  that  time  zoning  has  gone  on  rapidly  in  the  state  of  Wisconsin.  No  case 
can  be  found  in  the  United  States  where  there  has  been  a  successful  union 
of  the  police  power  and  eminent  domain  in  the  field  of  zoning.  Moreover, 
every  attempt  in  this  country  to  accomplish  zoning  by  eminent  domain  has 
been  a  failure. 

Laws  of  Minnesota,  Chapter  128  of  1915. 

Laws  of  Wisconsin,  Chapter  404  of  1917. 

Laws  of  Wisconsin,  Chapter  691  of  1919. 

1  Welch  v.  Swasey,  214  U.  S.  91  (1909). 
Romar  Realty  Co.  v.  Board  of  Commissioners  of  Haddonfield,  114  Atl. 

248  (N.  J.,  1921). 
Dorison  v.  Saul,  118  Atl.  691  (N.  J.,  1922). 

State  ex  rel.  Klefisch  v.  Wisconsin  Telephone  Co.,  195  N.  W.  544  (Wis., 
1923). 

Piper  v.  Ekern,  194  N.  W.  159  (Wis.,  1923). 


34 


that  may  be  occupied,  the  size  of  yards,1  courts  and  other  open 
spaces,  the  density  of  population,2  and  the  location  and  use  of 
buildings,  structures  and  land  for  trade,  industry,  residence  or 
other  purposes.3   Such  regulations  may  provide  that  a  board  of 

1  "The  size  of  yards":  It  will  be  noticed  that  provision  for  street  setbacks 
is  omitted.  The  reason  for  this  is  that  street  setback  regulations  have  usually 
been  associated  with  the  creation  of  streets  or  courtyard  easements.  Numer- 
ous court  cases  require  the  latter  to  be  acquired  by  eminent  domain.  Street 
setbacks,  under  the  police  power  have  not  yet  received  widespread  court 
approval. 

Halsell  v.  Ferguson,  202  S.  W.  317  (Texas,  1918). 
Town  of  Windsor  v.  Whitney,  95  Conn.  357  (1920). 

In  re  Appeal  of  White  from  Decision  of  Board  of  Appeals,  Pittsburgh,  Pa., 
Court  of  Common  Pleas,  Allegheny  County,  No.  2714,  April  Term,  1924. 
On  the  other  hand,  side,  rear  and  front-yard  requirements,  when  directly  re- 
lated to  light,  air,  health,  and  safety  against  fire,  are  upheld  by  the  courts. 
While  some  may  say  it  is  a  mere  difference  of  words  and  not  of  realities  to  pro- 
vide for  front-yard  requirements  instead  of  street  setbacks,  nevertheless  the 
treatment  of  front  yards  under  the  same  authorization  as  side  and  rear  yards 
is  more  consistent.  It  calls  the  attention  of  the  framers  of  ordinances  to  the 
necessity  of  relating  such  requirements  to  the  health  and  safety  of  the  com- 
munity, and  it  impresses  the  court  that  front-yard  requirements  are  not  an 
evasion  under  which  a  street  widening  is  initiated. 

'"The  density  of  population":  The  general  city  law  of  New  York  state 
authorizes  the  regulation  of  height,  bulk  and  use.  New  Rochelle,  N.  Y., 
proceeding  under  this  law,  adopted  a  zoning  ordinance  limiting  the  house 
arrangement  to  a  certain  number  of  families  per  acre.  An  applicant  for  a 
permit  claimed  before  the  court  that  the  city  had  received  no  authority  from 
the  legislature  to  limit  the  number  of  families  per  acre.  The  court  held  that 
this  provision  in  the  ordinance  was  void. 

Matter  of  Barker  v.  New  Rochelle,  209  App.  Div.  151  (N.  Y.,  1924). 
It  is  considered  that  this  provision  for  the  regulation  of  density  of  population 
will  make  it  possible  for  ordinances  to  impose  a  limitation  of  families  per  acre, 
or  of  square  feet  per  family,  or  of  feet  frontage  per  family. 

»  State  ex  rel.  Morris  v.  East  Cleveland,  22  Ohio  N.  P.  (N.S.)  549  (1920). 
City  of  Des  Moines  v.  Manhattan  Oil  Co.,  184  N.  W.  823  (Iowa,  1921); 

193  Iowa  1096  (1922). 
Schait  v.  Senior,  117  Atl.  517  (N.  J.,  1922). 
Handy  v.  South  Orange,  118  Atl.  838  (N.  J.,  1922). 
Ware  v.  City  of  Wichita,  214  Pac.  99  (Kan.,  1923). 

State  of  Ohio  ex  rel.  Danzig  v.  Lakewood,  21  Ohio  Law  Bull,  and  Rep. 
(No.  43)  395  (Court  of  Appeals,  1923). 

State  ex  rel.  Civello  v.  City  of  New  Orleans,  97  So.  440  (La.,  1923). 

State  ex  rel.  Carter  v.  City  of  Milwaukee,  196  N.  W.  451  (Wis.,  1923). 

Motor  Home,  Inc.  v.  Hedden,  Superior  Court,  Los  Angeles,  Calif.,  No- 
vember 14,  1923. 

Miller  v.  Board  of  Public  Works  of  Los  Angeles,  District  Court  of  Appeal, 
Second  Appellate  District,  Calif.,  Division  Two,  Dec.  21,  1923. 

State  ex  rel.  Vernon  v.  Mayor  &  Council  of  Town  of  Westfield,  124  Atl. 
248  (N.  J.,  1923). 

City  of  Memphis  v.  Gianotti,  Supreme  Court,  Tennessee,  Western  Divi- 
sion, Mar.  29,  1924. 

Ambler  Realty  Co.  v.  Village  of  Euclid,  Ohio,  297  Federal  Rep.  307  (1924). 

Ignaciunas  v.  Town  of  Nutley,  125  Atl.  121  (N.  J.,  1924). 

Santangelo  v.  City  of  Cincinnati,  Superior  Court  of  Cincinnati,  Ohio, 
No.  50087,  June  18,  1924. 


35 


appeals  may  determine  and  vary1  their  application  in  harmony 
with  their  general  purpose  and  intent,  and  in  accordance  with 
general  or  specific  rules  therein  contained. 

Section  2.  Districts. —  For  any  or  all  of  said  purposes  the  local 
legislative  body  may  divide  the  municipality  into  districts  of  such 
number,  shape  and  area  as  may  be  deemed  best  suited  to  carry 
out  the  purposes  of  this  Act ;  and  within  such  districts  it  may 
regulate  and  restrict  the  erection,  construction,  reconstruction, 
alteration  or  use  of  buildings,  structures  or  land.  All  such  regula- 
tions shall  be  uniform  for  each  class  or  kind  of  buildings  through- 
out each  district,  but  the  regulations  in  one  district  may  differ 
from  those  in  other  districts.2 

1  "A  board  of  appeals  may  determine  and  vary":  This  is  part  of  the  grant 
of  power  to  municipalities  and  should  not  be  omitted  here.  This  provision  is 
quite  distinct  from  others  relating  to  appeals  from  the  building  superintendent. 
Such  appeals  can  be  taken  to  the  board  whether  provided  for  in  the  ordinance 
or  not.  This  sentence  has  nothing  to  do  with  appeals.  Strictly  speaking  it 
empowers  the  municipality  to  prescribe  items  for  the  board  to  pass  on  as 
matters  of  original  jurisdiction. 

People  ex  rel.  Beinert  v.  Miller,  188  App.  Div.  113  (N.  Y.,  1919). 

People  ex  rel.  Sondern  v.  Walsh,  108  Misc.  193  (N.  Y.,  1919) ;  see  also  p.  196. 
If  a  municipality  desires  to  leave  the  items  out  of  the  ordinance  entirely,  the 
appellate  jurisdiction  of  the  board  will  remain  unimpaired.  Similarly  if  the 
board  of  appeals  is  not  mentioned  in  the  ordinance  at  all,  its  appellate  juris- 
diction would  remain  intact.  The  reason  why  it  has  always  been  considered 
best  to  empower  the  municipality  to  prescribe  certain  items  with  appropriate 
rules  is  because  appeals  must  be  based  on  practical  difficulties-or  unnecessary 
hardship,  and  sometimes  it  is  desirable  to  provide  for  special  cases  not  within 
these  confines.  For  instance,  it  might  not  be  a  practical  difficulty  or  unneces- 
sary hardship  if  an  owner  of  a  vacant  sand  lot  in  a  residence  district  could  not 
use  it  temporarily  for  making  concrete  blocks.  On  the  other  hand,  a  temporary 
permit  can  reasonably  be  granted  where  no  one  is  injured.  This  might  well  be 
done  "  in  harmony  with  the  general  purpose  and  intent "  of  the  regulations,  but 
if  done  the  provision  must  be  inserted  in  the  ordinance.  Then  the  board  can 
pass  on  it,  not  .as  an  appeal  but  as  a  matter  of  original  jurisdiction.  Most 
ordinances  contain  a  list  of  these  special  items.  They  vary  in  different  munici- 
palities. In  actual  practice  the  building  plans  are  usually  first  submitted  to 
the  building  superintendent  by  the  builder  whether  on  an  item  of  original 
jurisdiction  or  on  appeal,  and  then  the  form  of  an  appeal  is  used  in  all  cases. 
The  fundamental  difference  of  the  two  kinds  of  cases  must,  however,  be  ob- 
served in  drawing  the  enabling  act  and  the  ordinance.  No  satisfactory  sub- 
stitute for  this  dual  functioning  of  the  board  of  appeals  has  been  found.  The 
enabling  act  or  the  ordinance  will  be  found  incomplete  if  both  methods  are  not 
provided. 

*"The  regulations  in  one  district  may  differ  from  those  in  other  districts": 
This  provision  was  inserted  in  the  original  zoning  amendment  to  the  Greater 
New  York  charter. 

Chapter  470  of  Laws  of  1914  and  amended  by  Chapter  497  of  Laws  of  1916. 
It  was  intended  to  be  the  foundation  of  police  power  zoning  and  it  has  un- 
doubtedly been  more  important  than  any  other  clause  in  bringing  court  sup- 
port to  the  subject.  Charters  of  many  cities  had  heretofore  authorized  ordi- 
nances regulating  height,  bulk  and  use  of  buildings.  These  were  known  as 
building  laws  or  building  codes.  But  apart  from  fire  limits  they  applied  alike 
to  all  parts  of  the  city.   There  was  no  zoning, — that  is,  no  recognition  of  the 


36 


Section  3.    Purposes  in  View. — Such  regulations  shall  be  made 

in  accordance  with  a  comprehensive  plan1  and  designed  to  lessen 

congestion  in  the  streets;  to  secure  safety  from  fire,  panic  and 

other  dangers;   to  promote  health  and  the  general  welfare;  to 

provide  adequate  light  and  air;  to  prevent  the  overcrowding  of 

land;  to  avoid  undue  concentration  of  population;  to  facilitate 

the  adequate  provision  of  transportation,  water,  sewerage,  schools, 

parks  and  other  public  requirements.   Such  regulations  shall  be 

made  with  reasonable  consideration,  among  other  things,  as  to 

the  character  of  the  district2  and  its  peculiar  suitability  for  partic- 

need  of  different  regulations  for  different  districts.  The  fundamental  idea  of 
zoning  is  that  the  health  and  safety  of  the  community  justify  a  gradually 
increasing  allowance  of  light,  air,  and  access  for  structures  in  the  outlying 
parts  of  a  city.  The  belts  or  zones  thus  pass  from  intensive  to  dispersive. 
Zoning  in  this  sense  is  the  reasonable  distribution  of  the  dwellings,  business  and 
industry  of  a  community  for  its  safety,  health  and  general  welfare.  There- 
fore the  new  departure  in  building  regulations  called  zoning  provides  different 
requirements  for  different  districts.  A  building  code  gives  the  uniform  re- 
quirements for  buildings  wherever  situated.  The  two  cannot  be  merged  in  a 
single  ordinance,  because  the  nature  of  zoning  requires  a  different  approach 
from  building  laws  or  a  building  code.  Zoning  pertains  to  specific  localities 
that  may  gradually  change.  Therefore  there  is  need  of  checks,  hearings  and 
procedure  entirely  different  from  what  is  needed  in  framing  or  amending  a 
building  code.   These  differences  necessarily  appear  in  the  enabling  acts. 

The  requirement  that  the  regulations  shall  be  uniform  in  each  district  is 
complementary  to  the  provision  for  different  regulations  in  different  districts. 
This  prevents  special  exceptions  from  time  to  time  by  the  council.  It  shows 
the  court  that  all  property  situated  alike  is  presumably  treated  alike. 

Willerup  v.  Village  of  Hempstead,  120  Misc.  485  (N.  Y.,  1923). 
It  serves  to  take  the  entire  subject  out  of  the  realm  of  legislative  favors  as 
well  as  out  of  the  domain  of  common  law  nuisance. 

1  "A  comprehensive  plan":  Sound  zoning  implies  a  comprehensive  plan. 
The  zoning  ordinance  should  be  applied  to  the  whole  municipality  at  once. 
Piecemeal  zoning  is  dangerous,  because  it  treats  the  same  kind  of  property 
differently  in  the  same  community. 

City  of  Utica  v.  Hanna,  206  App.  Div.  732  (N.  Y.,  1923). 
Cities  are  sometimes  tempted  to  pass  piecemeal  ordinances  to  protect  small 
residence  districts  pending  the  preparation  of  the  comprehensive  plan.  This 
usually  happens  where  private  restrictions  are  expiring  and  residents  urge  that 
the  locality  will  be  ruined  unless  it  is  immediately  zoned.  It  is  better  for  the 
entire  city  to  hasten  the  passage  of  the  complete  ordinance  than  to  favor  a 
single  locality  by  passing  a  preferential  and  piecemeal  ordinance  perhaps  fol- 
lowed by  an  adverse  court  decision  which  may  postpone  all  zoning  for  years. 

Clements  v.  McCabe,  177  N.  W.  722  (Mich.,  1920). 
The  same  argument  applies  to  preliminary  or  interim  zoning.  An  ordinance 
without  maps  creating  districts  according  to  the  preponderance  of  dwellings 
is  commonly  called  interim  zoning.  The  courts  are  more  and  more  setting  such 
regulations  aside  as  unreasonable  and  not  based  on  the  health  and  safety  of  the 
community. 

Spann  v.  City  of  Dallas,  235  S.  W.  513  (Texas,  1921). 

Hayden  v.  Clary,  Supreme  Court,  Onondaga  County,  Syracuse,  N.  Y. 

January  6,  1922. 
People  ex  rel.  Roos  v.  Kaul,  302  III.  317  (1922). 
Harris  v.  Village  of  Dobbs  Ferry,  208  App.  Div.  853  (N.  Y.,  1924). 
*  "The  character  of  the  district":  After  the  zoning  of  New  York  was  upheld 
by  the  courts,  some  cities  and  more  villages  jumped  to  the  conclusion  that  a 


37 


ular  uses,  and  with  a  view  to  conserving  the  value  of  buildings 
and  encouraging  the  most  appropriate  use  of  land  throughout 
such  municipality. 

Section  4.  Method  of  Procedure. — The  legislative  body  of  such 
municipality  shall  provide  for  the  manner  in  which  such  regula- 
tions and  restrictions  and  the  boundaries  of  such  districts  shall 
be  determined,  established  and  enforced,  and  from  time  to  time 
amended,  supplemented  or  changed.  However,  no  such  regula- 
tion, restriction  or  boundary  shall  become  effective  until  after  a 
public  hearing  in  relation  thereto,  at  which  parties  in  interest  and 
citizens  shall  have  an  opportunity  to  be  heard.  At  least  fifteen 
days'  notice  of  the  time  and  place  of  such  hearing  shall  be  pub- 
lished in  an  official  paper  or  a  paper  of  general  circulation  in  such 
municipality. 

Section  5.  Changes. — Such  regulations,  restrictions  and  boun- 
daries may  from  time  to  time  be  amended,  supplemented,  changed, 
modified  or  repealed.    In  case,  however,  a  protest  against  such 

substitute  for  private  restrictions  had  been  discovered,  and  thereupon  pro- 
ceeded to  pass  zoning  ordinances  that  were  little  more  than  a  copy  of  private 
restrictions.  They  seemed  to  think  that,  if  the  word  zoning  was  used  and  the 
regulations  were  passed  by  the  council,  the  courts  would  approve  all  kinds  of 
regulations  whether  based  on  the  health,  safety  and  general  welfare  or  not. 
This  has  been  the  cause  of  many  adverse  court  decisions.  Police  power  zoning 
differs  fundamentally  from  private  restrictions.  It  must  be  based  on  com- 
munity health,  safety  and  welfare.  It  must  be  reasonable  and  impartial.  It 
cannot  be  used  to  carry  out  all  kinds  of  personal  preferences.  Thus  far  the 
courts  have  not  been  willing  to  uphold  zoning  merely  for  aesthetics.  Private 
restrictions  on  the  other  hand  are  contracts  and  can  properly  cover  all  kinds  of 
objects.  These  may  include  such  requirements  as  peaked  roofs,  low  hedges, 
fences  of  open  construction,  cost  of  buildings,  architectural  design,  etc.,  none 
of  which  can  properly  be  introduced  into  a  zoning  ordinance. 

Zoning  regulations  are  better  than  private  restrictions  inasmuch  as  they  can 
be  changed  by  the  council  when  changes  are  necessary.  They  do  not  have  a 
date  of  expiration  and  they  do  not  become  unenforceable  by  reason  of  the 
laches  of  neighbors.  Private  restrictions  have  the  advantage  of  covering  a 
much  wider  field.  Zoning  regulations  and  private  restrictions  are  enforced  in 
different  ways.  Zoning  regulations  are  enforced  by  the  non-issue  of  permits 
or  the  ousting  of  non-conforming  uses.  Ordinarily  the  city  only  can  take  the 
initiative.  A  property  owner,  however,  who  pleads  and  proves  special  dam- 
ages can  maintain  an  injunction. 

Whitridge  v.  Calestock,  179  App.  Div.  884  (N.  Y.,  1917). 

Cohen  v.  Rosevale  Realty  Co.,  120  Misc.,  416;  affd.  206  App.  Div.  681 
(N.  Y.,  1923). 

Cohen  v.  Rosevale  Realty  Co.,  121  Misc.  618  (N.  Y.,  1923). 
Private  restrictions  are  enforced  mainly  by  injunction  brought  by  the  injured 
party  who  must  establish  a  privity  of  contract  with  the  owner  sought  to  be 
enjoined.  Zoning  regulations  and  private  restrictions  can  exist  or  be  imposed 
simultaneously.  They  operate  hand  in  hand.  One  can  supplement  the  other. 
They  never  interfere  with  each  other.  The  courts  in  Greater  New  York  dis- 
regard the  zoning  when  passing  on  a  case  of  private  restrictions  and  similarly 
disregard  private  restrictions  when  passing  on  a  case  of  zoning. 


38 


change  be  presented,  duly  signed  and  acknowledged  by  the  owners 
of  twenty  per  cent  or  more  of  the  area  of  the  lots  included  in 
such  proposed  change,  or  of  those  immediately  adjacent  in  the 
rear  thereof  extending  100  feet  therefrom,  or  of  those  directly 
opposite  thereto,  extending  100  feet  from  the  street  frontage  of 
such  opposite  lots,1  such  amendment  shall  not  become  effective 
except  by  the  favorable  vote  of  three-fourths2  of  all  the  mem- 
bers of  the  legislative  body  of  such  municipality.  The  provisions 
of  the  previous  section  relative  to  public  hearings  and  official 
notice  shall  apply  equally  to  all  changes  or  amendments. 

Section"  6.  Zoning  Commission. —  In  order  to  avail  itself  of  the 
powers  conferred  by  this  Act,  such  legislative  body  shall  appoint 
a  commission  to  be  known  as  the  Zoning  Commission  to  recom- 
mend the  boundaries  of  the  various  original  districts  and  appro- 
priate regulations  to  be  enforced  therein.  Such  commission  shall 
make  a  preliminary  report  and  hold  public  hearings3  thereon  be- 

1"The  street  frontage  of  such  opposite  lots":  The  owners  of  three  different 
groups  of  lots  can  sign  the  protest.  The  owners  of  20%  of  the  area  of  any  one 
of  the  groups  can  make  necessary  the  three-fourths  vote.  The  third  group  of 
lots  includes  the  lots  opposite  both  street  sides  of  a  corner  lot. 

1  "Shall  not  become  effective  except  by  the  favorable  vote  of  three-fourths": 
The  purpose  of  the  20%  protest  is  to  make  changes  of  the  ordinance  and  maps 
difficult  unless  there  is  a  high  degree  of  acquiescence.  A  zoning  ordinance 
ought  to  be  stiff.  If  a  change  of  one  vote  of  the  council  or  a  bare  majority  of  a 
new  council  can  disorganize  a  carefully  studied  zoning  plan,  then  the  munici- 
pality is  likely  to  be  worse  off  than  if  it  had  no  zoning  plan  at  all.  For  in- 
stance, if  a  man  erects  a  six-story  building  in  compliance  with  the  limitations 
of  the  zoning  ordinance  and  then  his  neighbors  induce  the  council  to  change 
his  district  to  a  twelve-story  district,  he  is  penalized  because  he  obeyed  the 
zoning.  A  zoning  plan  should  be  susceptible  of  change  when  needed,  but  the 
property  owners  actually  affected  should  be  given  a  means  of  compelling  a 
nearly  unanimous  vote  of  the  council  if  a  change  not  desired  by  the  property 
owners  is  to  be  made.  In  Greater  New  York  the  unanimous  vote  of  the  board 
of  estimate  is  requisite  to  make  a  change  after  a  20%  protest  is  filed. 

Matter  of  Palmer  v.  Mann,  237  N.  Y.  616  (1924). 
The  present  general  city  law  (Chapter  743,  Laws  of  1920)  and  the  village 
law  (Chapter  564,  Laws  of  1923)  of  New  York  state  require  a  unanimous  vote. 
The  new  enabling  act  (Chapter  146,  Laws  of  1924)  of  New  Jersey  requires  a 
three-fourths  vote.  The  enabling  act  (Chapter  279,  Laws  of  1923)  of  Con- 
necticut applicable  to  Greenwich  and  other  towns  and  cities  requires  a  four- 
fifths  vote.  A  zoning  enabling  act  intended  for  all  the  municipalities  of  a  state 
will  almost  always  affect  some  cities  which  have  a  large  council  and  therefore 
such  general  act  usually  requires  a  three-fourths  vote  of  all  the  members.  It 
is  needless  to  say  that  this  is  a  greater  safeguard  than  a  provision  requiring  the 
vote  of  three-fourths  of  the  members  present. 

'"Hold  public  hearings":  Not  only  should  public  hearings  be  held  but  so 
far  as  possible  the  commission  should  obtain  the  views  of  property  owners  at 
the  very  beginning.  Many  proposed  zoning  ordinances  are  today  resting  in 
pigeon-holes  because  a  plan  was  prepared  without  the  knowledge  of  the  prop- 
erty owners  and  their  instinct  was  to  rebel  against  it  as  an  unfair  limitation  of 
their  constitutional  rights.    The  best  way  is  to  begin  the  preparation  for 


39 


fore  submitting  its  final  report;  and  such  legislative  body  shall 
not  hold  its  public  hearings  or  take  action  until  it  has  received  the 
final  report  of  such  commission.  Where  a  city  plan  commission 
already  exists,  it  may  be  appointed  as  the  Zoning  Commission. 

Section  7.  Board  of  Appeals. — Such  local  legislative  body  may 
provide  for  the  appointment  of  a  board  of  appeals1  consisting 
of  five  members,  each  to  be  appointed  for  three  years.  The  ap- 
pointing authority  shall  have  the  power  to  remove  any  member 
of  the  board  for  cause  and  after  public  hearing.  Vacancies  shall 
be  filled  for  the  unexpired  term  of  the  member  whose  place  has 
become  vacant.  All  meetings  of  the  board  of  appeals  shall  be 
held  at  the  call  of  the  chairman  and  at  such  other  times  as  such 
board  may  determine.  Such  chairman,  or  in  his  absence  the 
acting  chairman,  may  administer  oaths  and  compel  the  atten- 
dance of  witnesses.  All  meetings  of  such  board  shall  be  open  to  the 
public.  Such  board  shall  keep  minutes  of  its  proceedings,  showing 

zoning  by  interesting  the  property  owners,  particularly  the  owners  of  small 
homes  and  stores,  in  the  protective  possibilities  of  a  zoning  ordinance.  After 
the  property  owners  of  any  locality  have  become  informed  on  the  limitations  of 
the  police  power  and  the  proper  objects  of  zoning,  great  weight  should  be  given 
to  their  opinion  in  the  preparation  of  the  maps.  This  statement  refers  to  the 
owners  of  property  in  the  locality  to  be  zoned,  not  so  much  to  people  in  other 
localities  who  want  it  zoned  a  certain  way.  More  than  half  of  the  court  de- 
cisions against  municipalities  for  arbitrary  and  unreasonable  zoning  arise 
because  the  officials  zone  a  locality  to  suit  some  neighboring  group  of  property 
owners  who  may  be  more  vociferous  or  who  may  have  more  votes.  The  ques- 
tion is  not  at  all  what  will  please  the  neighbors  who  do  not  own  the  land,  but 
what  is  a  fair  and  reasonable  regulation  for  the  land  itself,  taking  into  account 
the  health,  safety  and  welfare  of  the  entire  community. 

1  "Appointment  of  a  board  of  appeals":  This  is  a  discretionary  adminis- 
trative body,  always  acting  under  rules  prescribed  by  the  state  or  municipality. 
It  should  be  an  expert  board  whose  decisions  after  hearings  and  investigations 
will  be  such  that  courts  will  uphold  them  if  arrived  at  in  good  faith  and  in 
accordance  with  the  law. 

People  ex  rel.  Healy  v.  Leo,  194  App.  Div.  973  (N.  Y.,  1920). 

People  ex  rel.  Helvetia  Realty  Co.  v.  Leo,  231  N.  Y.  619  (1921). 
Suitable  appointees  are  the  head  of  the  uniformed  force  of  the  fire  depart- 
ment, a  health  officer,  an  architect,  a  structural  engineer,  a  practical  builder 
or  a  real  estate  broker.  It  is  better  that  the  members  should  not  be  drawn 
from  the  council  because  of  the  danger  of  confusing  their  functions.  The  coun- 
cil is  a  lawmaking  body  and  its  discretion  cannot  be  reviewed  by  the  courts. 
The  board  of  appeals,  however,  is  not  a  legislative  body.  It  exercises  discre- 
tion within  prescribed  limits,  and  its  discretion  is  reviewable  by  the  courts. 
If  the  legislative  body  is  made  up  of  the  same  people  as  the  board,  its  members 
are  constantly  tempted  to  accomplish  by  legislation  what  they  cannot  accom- 
plish by  variances  within  the  rules.  Similarly  it  is  not  best  that  the  members 
of  the  board  of  appeals  should  be  drawn  from  the  zoning  commission.  The 
zoning  commission  advises  the  council  on  legislative  matters.  It  is  the  helper 
to  the  council.  If  it  is  at  the  same  time  a  board  of  appeals,  it  will  be  con- 
stantly tempted  to  accomplish  under  the  guise  of  variances  the  very  things 
which  the  council  is  unwilling  to  enact  as  laws. 


40 


the  vote  of  each  member  upon  every  question,  or  if  absent  or 
failing  to  vote,  indicating  such  fact,  and  shall  also  keep  records  of 
its  examinations  and  other  official  actions.  Every  rule,  regula- 
tion, every  amendment  or  repeal  thereof,  and  every  order,  re- 
quirement, decision  or  determination  of  the  board  shall  imme- 
diately be  filed  in  the  office  of  the  board  and  shall  be  a  public 
record. 

Such  board  of  appeals  shall  hear  and  decide  appeals  from  and 
review  any  order,  requirement,  decision  or  determination  made 
by  an  administrative  official  charged  with  the  enforcement  of  any 
ordinance  adopted  pursuant  to  this  Act.  It  shall  also  hear  and 
decide  all  matters  referred  to  it  or  upon  which  it  is  required  to 
pass  under  any  such  ordinance.  The  concurring  vote  of  four 
members  of  the  board 1  shall  be  necessary  to  reverse  any  order, 
requirement,  decision  or  determination  of  any  such  administrative 
official,  or  to  decide  in  favor  of  the  applicant  any  matter  upon 
which  it  is  required  to  pass  under  any  such  ordinance  or  to  effect 
any  variation  in  such  ordinance.  Such  appeal  may  be  taken  by 
any  person  aggrieved  or  by  an  officer,  department,  board  or 
bureau  of  the  municipality. 

Such  appeal  shall  be  taken  within  such  time  as  shall  be  pre- 
scribed by  the  board  of  appeals  by  general  rule,  by  filing  with  the 
officer  from  whom  the  appeal  is  taken  and  with  the  board  of 
appeals  a  notice  of  appeal,  specifying  the  grounds  thereof.  The 
officer  from  whom  the  appeal  is  taken  shall  forthwith  transmit 
to  the  board  all  the  papers  constituting  the  record  upon  which 
the  action  appealed  from  was  taken. 

An  appeal  stays  all  proceedings  in  furtherance  of  the  action 
appealed  from,  unless  the  officer  from  whom  the  appeal  is  taken 
certifies  to  the  board  of  appeals  after  the  notice  of  appeal  shall 
have  been  filed  with  him  that  by  reason  of  facts  stated  in  the 

1  "The  concurring  vote  of  four  members  of  the  board":  The  requirement 
is  of  more  than  a  majority  vote.  An  applicant  for  a  variance  desires  to  have  a 
structure  or  use  approved  which  differs  from  the  general  rule  imposed  on  all 
his  neighbors.  Under  such  circumstances  it  is  right  that  the  merits  of  the 
applicant's  case  should  appeal  to  more  than  a  bare  majority.  The  first  Greater 
New  York  charter  provisions  and  some  of  other  enabling  acts  based  thereon 
required  this  preponderating  vote  for  all  decisions.  It  was  found  in  actual 
practice  that  the  board  would  sometimes  divide  in  a  way  that  neither  granted 
the  variance  nor  refused  it.  As  the  applicant  could  not  ask  for  a  court  review 
until  the  board  of  appeals  had  filed  a  decision,  the  applicant  was  embarrassed 
in  obtaining  a  speedy  court  review.  The  above  provisions  obviate  this  danger. 

People  ex  rel.  N.  Y.  Central  R.  R.  v.  Leo,  105  Misc.  372  (N.  Y.,  1918). 

Matter  of  West  Side  Mort.  Co.  v.  Leo,  174  N.  Y.  Supp.  451  (1919). 

41 


certificate  a  stay  would,  in  his  opinion,  cause  imminent  peril  to 
life  or  property,  in  which  case  proceedings  shall  not  be  stayed 
otherwise  than  by  a  restraining  order  which  may  be  granted  by 
the  board  of  appeals  or  by  a  court  of  record  on  application,  on 
notice  to  the  officer  from  whom  the  appeal  is  taken  and  on  due 
cause  shown. 

The  board  of  appeals  shall  fix  a  reasonable  time  for  the  hear- 
ing of  the  appeal  or  other  matter  referred  to  it  and  give  due 
notice  thereof  to  the  parties,  and  decide  the  same  within  a 
reasonable  time.  Upon  the  hearing,  any  party  may  appear 
in  person  or  by  agent  or  by  attorney.  The  board  of  appeals 
may  reverse  or  affirm,  wholly  or  partly,  or  may  modify  the 
order,  requirement,  decision  or  determination  appealed  from 
and  shall  make  such  order,  requirement,  decision  or  determina- 
tion as  in  its  opinion  ought  to  be  made  in  the  premises,  and  to 
that  end  shall  have  all  the  powers  of  the  officer  from  whom  the 
appeal  is  taken.  Where  there  are  practical  difficulties  or  unneces- 
sary hardship  in  the  way  of  carrying  out  the  strict  letter  of  such 
ordinance,  the  board  of  appeals  shall  have  the  power  in  passing 
upon  appeals,  to  vary  or  modify 1  the  application  of  any  of  the 

1  "Power  in  passing  upon  appeals,  to  vary  or  modify":  The  need  of  giving 
an  administrative  board  the  power  to  vary  the  strict  letter  of  the  ordinance 
and  maps  has  become  generally  recognized. 

In  re  Permit  to  American  Reduction  Company,  Municipal  Law  Rep.  (Penn- 
sylvania) Vol.  15,  No.  8,  April,  1924  (Court  of  Common  Pleas,  Allegheny 
County,  Pittsburgh). 
This  power  granted  directly  by  the  state  legislature  to  the  board  of  appeals 
is  not  only  a  protection  to  the  applicant  but  a  safeguard  of  the  entire  ordinance 
against  court  decisions  of  unconstitutionality.  The  ordinance  itself  can 
enumerate  a  dozen  or  more  special  situations  wherein  a  particular  environment 
will  justify  a  non-conforming  structure.  The  enabling  act  makes  provision 
for  the  enumeration  of  such  matters  by  the  council.  No  enumeration,  however, 
could  be  long  enough  to  cover  all  the  exceptional  cases  in  the  great  field  of 
buildings  and  their  uses.  It  is  the  unexpected  that  happens.  Consequently 
the  most  that  the  ordinance  itself  can  do  is  to  provide  the  maps  and  general 
requirements  covering  perhaps  98%  of  the  applications  for  permits,  then  the 
enumerated  items  in  the  ordinance  for  the  board  of  appeals  to  decide  may 
cover  1%  more  of  the  applications,  but  the  remaining  1%  no  prophet  can  fore- 
see and  no  ordinance  can  define.  These  cases  of  practical  difficulty  and 
unnecessary  hardship  sometimes  arise  where  a  single  lot  is  in  two  districts, 
or  where  the  building  plot  is  irregular  or  on  different  grades,  or  where  a  certain 
kind  of  construction  is  unduly  expensive,  or  where  non-conforming  buildings 
or  uses  render  a  conforming  building  impossible,  unprofitable  or  abnormal. 
In  all  cases  such  as  these  the  board  of  appeals,  in  passing  on  appeals,  can  vary 
the  strict  letter  of  the  ordinance,  but  it  cannot  do  it  whenever  and  in  any  way 
that  it  chooses.  It  must  follow  the  rules  prescribed  for  it,  or  else  its  acts  will 
be  unlawful. 

People  ex  rel.  McAvoy  v.  Leo,  109  Misc.  255  (N.  Y.,  1919). 
People  ex  rel.  Facey  v.  Leo,  230  N.  Y.  602  (1921). 

People  ex  rel.  Forty-First  &  Park  Ave.  Corp.  v.  Walsh,  199  App.  Div.  925 
(N.  Y.,  1921). 

42 


regulations  or  provisions  of  such  ordinance  relating  to  the  use, 
construction  or  alteration  of  buildings  or  structures  or  the  use  of 
land,  so  that  the  spirit  of  the  ordinance  shall  be  observed,  public 
safety  and  welfare  secured  and  substantial  justice  done. 

Any  person  or  persons,  jointly  or  severally  aggrieved  by  any  de- 
cision of  the  board  of  appeals,1  or  any  officer,  department,  board 
or  bureau  of  the  municipality,  may  present  to  a  court  of  record  a 
petition,  duly  verified,  setting  forth  that  such  decision  is  illegal, 
in  whole  or  in  part,  specifying  the  grounds  of  the  illegality.  Such 
petition  must  be  presented  to  the  court  within  thirty  days  after 
the  filing  of  the  decision  in  the  office  of  the  board. 

People  ex  rel.  Wohl  v.  Leo,  192  N.  Y.  Supp.  945  (1922). 

People  ex  rel.  Brennan  v.  Walsh,  195  N.  Y.  Supp.  264  (1922). 

People  ex  rel.  Kannensohn  Holding  Corp.  v.  Walsh,  120  Misc.  467  (N.  Y., 

1923)  . 

People  ex  rel.  Ventres  v.  Walsh,  121  Misc.  494  (N.  Y.,  1923). 
Allen  v.  City  of  Paterson,  123  Atl.  884  (N.  J.,  1294). 

People  ex  rel.  Parry  v.  Walsh,  121  Misc.  631;  209  App.  Div.  889  (N.  Y., 

1924)  . 

It  can  only  make  a  variance  where  it  can  prescribe  an  alternative  that  will 
observe  the  spirit  of  the  ordinance  and  comport  with  public  safety  and  welfare. 

The  power  of  the  board  is  not  limited  to  minor  adjustments.  It  can  vary  the 
strict  letter  of  the  law  in  the  matter  of  any  particular  permit  so  that  the 
alternative  authorized  is  reasonable.  It  can  adjust  situations  that  would 
otherwise  involve  unconstitutionality,  so  that  they  come  within  the  pale  of 
constitutionality. 

People  ex  rel.  Sheldon  v.  Board  of  Appeals,  234  N.  Y.  484  (1923). 
It  can  impose  requirements  as  a  condition  to  granting  the  permit  that  will 
safeguard  the  surrounding  property.    The  functions  of  the  council  and  the 
boaid  do  not  clash.  The  council  controls  the  ordinance  and  maps.  The  board 
grants  variances  in  permits  for  particular  buildings  under  prescribed  rules. 

1  "Aggrieved  by  any  decision  of  the  board  of  appeals":  Although  in  every 
state  the  decisions  of  a  discretionary  board  like  the  board  of  appeals  are  subject 
to  court  review,  it  has  been  found  prudent  to  provide  a  specific  provision  for 
court  review  in  the  enabling  act,  for  one  thing  so  that  courts  may  plainly  see 
that  the  doings  of  the  board  of  appeals  are. subject  to  the  courts  so  far  as  due 
discretion  and  legality  of  conduct  are  concerned,  and  for  another  reason  so 
that  an  aggrieved  person,  even  if  he  is  not  a  party  to  the  case  before  the  board 
of  appeals,  can  still  obtain  a  court  review.  Sometimes  it  happens  that  the  only 
person  aggrieved  is  an  opposite  neighbor  whose  property  is  injured  by  the 
granting  of  the  variance.  If  he  does  not  have  a  standing  to  obtain  a  court 
review,  then  no  one  will  obtain  it.  The  applicant  for  the  permit  is  presumably 
satisfied  because  he  has  obtained  what  he  applied  for.  The  municipality  will 
presumably  uphold  the  decision  of  its  own  board  of  appeals  and  will  not  ask  for 
a  court  review.  Some  enabling  acts  provide  that  any  citizen  can  ask  for  and 
obtain  a  court  review,  but  there  is  much  to  be  said  in  favor  of  limiting  this 
privilege  to  property  owners  who  are  aggrieved,  otherwise  a  citizen  of  no  re- 
sponsibility, perhaps  prompted  by  malice,  might  harass  a  legitimate  builder. 
It  would  seem  that  any  citizen,  if  he  thought  that  a  bad  precedent  was  being 
established,  could  find  some  property  owner  near  the  objectionable  building 
who  would  be  willing  to  ask  for  a  court  review  and  who  could  establish  the 
fact  that  he  was  an  aggrieved  person.  In  some  states  any  taxpayer  has  a 
standing  to  ask  for  a  court  review  even  if  he  does  not  plead  and  prove  that  he 
is  an  aggrieved  person. 

43 


Upon  the  presentation  of  such  petition,  the  court  may  allow  a 
writ  of  certiorari 1  directed  to  the  board  of  appeals  to  review  such 

1  "Court  may  allow  a  writ  of  certiorari":  Six  years  ago  it  was  commonly 
supposed  that  the  provision  of  a  board  of  appeals  with  power  to  vary,  followed 
by  the  right  of  court  review,  was  merely  a  method  of  rounding  off  the  sharp 
corners  of  the  ordinance  and  maps.  It  is  now  generally  considered  that  this 
remedy  is  a  vital  necessity  to  a  zoning  plan.  The  occasional  exceptional  situa- 
tion of  arbitrariness  is  sure  to  arise.  If  a  variance  cannot  in  some  way  be  made, 
the  courts  will  decide  that,  in  respect  to  that  particular  situation,  the  ordinance 
is  unconstitutional  and  void. 

State  ex  rel.  Westminster  Presbyterian  Church  v.  Edgcomb,  189  N.  W.  617 
(Neb.  1922). 

Zahn  v.  Board  of  Public  Works,  Los  Angeles,  District  Court  of  Appeal, 

Second  Appellate  District,  Calif.,  Division  One,  Mar.  20,  1924. 
Sometimes  the  occasion  arises  where  a  lot  is  partly  in  one  district  and  partly 
in  another.  Sometimes  the  lot  itself  is  of  a  peculiar  form.  Sometimes  grades 
of  two  streets  on  which  the  lot  faces  are  abnormal.  Sometimes  a  vacant  lot 
is  between  two  non-conforming  buildings,  and  to  force  the  owner  to  erect  a 
conforming  building  would  be  unreasonable  and  confiscatory.  Sometimes  part 
of  a  building  unit  is  already  constructed  and  the  strict  letter  of  the  ordinance 
would  compel  a  misshapen  addition  that  would  destroy  the  harmony  of  the 
whole.  In  some  cities  the  framers  of  zoning  plans  have  endeavored  to  meet 
these  emergencies  by  creating  an  advisory  board  which  can  hear  the  merits 
of  such  exceptional  cases  and  advise  the  legislative  body  to  make  special  ex- 
ceptions. The  trouble  with  this  method  is  that  special  exceptions  by  councils 
are  destructive  of  comprehensive  zoning.  But  worse  still  this  method  fails  to 
accomplish  the  main  object,  which  is  to  substitute  court  review  for  attacks  on 
constitutionality.  No  applicant  for  a  permit  need  postpone  his  court  action 
until  the  ordinance  is  amended.  He  can  proceed  by  application  for  a  writ  of 
mandamus  to  ask  the  court  to  pronounce  the  ordinance  void.  No  one  can  be 
compelled  to  wait  until  a  void  law  is  amended  before  he  has  a  standing  to  bring 
the  defect  to  the  attention  of  the  court.  Courts  will  not  review  and  adjust 
legislative  acts.  The  board  of  appeals  on  the  other  hand  is  not  a  legislative 
body.  It  is  an  administrative  body  acting  according  to  its  discretion  under 
rules  prescribed  by  law.  It  furnishes  a  forum  provided  by  law  to  which  the 
applicant  must  resort  for  an  adjustment.  It  is  axiomatic  in  the  laws  of  all  the 
states  that  a  litigant  cannot  bring  up  questions  of  constitutionality  until  he 
has  exhausted  the  remedies  given  him  by  law.  The  board  of  appeals  is  such  a 
remedy.  After  a  functioning  board  of  appeals  is  established  every  city  attor- 
ney should  request  the  courts  to  refer  to  the  board  of  appeals  all  applicants  for 
mandamus  or  injunction  based  on  claims  of  unconstitutionality. 
People  ex  rel.  Cantoni  v.  Moore,  179  App.  Div.  121  (N.  Y.,  1917). 
Flegenheimer  v.  Walsh,  Supreme  Court,  New  York  County,  opinion  by 

Mr.  Justice  Hotchkiss,  New  York  Law  Journal,  April  27,  1918,  p.  328. 
People  ex  rel.  Stockton  Tea  Room,  Inc.  v.  Copeland,  Supreme  Court,  New 

York  County,  opinion  by  Mr.  Justice  Cohalan,  New  York  Law  Journal, 

April  19,  1922,  p.  228. 
Matter  of  Heepe,  Supreme  Court,  Special  Term,  Part  I,  Kings  County, 

opinion  by  Mr.  Justice  Callaghan,  New  York  Law  Journal,  March  14, 

1924,  p.  2138. 

If  the  applicant  is  dissatisfied  after  the  decision  of  the  board  of  appeals  is 
rendered,  he  still  cannot  resort  immediately  to  a  court  action  to  annul  the  law. 
He  must  continue  to  employ  the  alternative  remedy  given  him  by  law. 

People  ex  rel.  Cockcroft  v.  Miller,  187  App.  Div.  704  (N.  Y.,  1919). 

People  ex  rel.  Broadway  and  Ninety-Sixth  Street  Realty  Co.  v.  Walsh,  203 
App.  Div.  468  (N.  Y.,  1922). 

Matter  of  Kelmenson  v.  Mann,  237  N.  Y.  615  (1924). 
This  additional  remedy  is  a  review  of  the  discretion  of  the  board  of  appeals 
by  the  court.    He  must  also  continue  to  exhaust  his  remedy  by  appeal  to 
higher  courts  if  he  is  still  dissatisfied. 


44 


decision  of  the  board  of  appeals  and  shall  prescribe  therein  the 
time  within  which  a  return  thereto  must  be  made  and  served  upon 
the  relator's  attorney,  which  shall  not  be  less  than  ten  days  and 
may  be  extended  by  the  court.  The  allowance  of  the  writ  shall 
not  stay  proceedings  upon  the  decision  appealed  from,  but  the 
court  may.  on  application,  on  notice  to  the  board  and  on  due 
cause  shown,  grant  a  restraining  order. 

The  board  of  appeals  shall  not  be  required  to  return  the  original 
papers  acted  upon  by  it,  but  it  shall  be  sufficient  to  return  certi- 
fied or  sworn  copies  thereof  or  of  such  portions  thereof  as  may  be 
called  for  by  such  writ.  The  return  must  concisely  set  forth  such 
other  facts  as  may  be  pertinent  and  material  to  show  the  grounds 
of  the  decision  appealed  from  and  must  be  verified. 

If,  upon  the  hearing,  it  shall  appear  to  the  court  that  testimony 
is  necessary  for  the  proper  disposition  of  the  matter,  it  may  take 
evidence  or  appoint  a  referee  to  take  such  evidence  as  it  may 
direct  and  report  the  same  to  the  court  with  his  findings  of  fact 
and  conclusions  of  law,  which  shall  constitute  a  part  of  the  pro- 
ceedings upon  which  the  determination  of  the  court  shall  be  made. 
The  court  may  reverse  or  affirm,  wholly  or  partly,  or  may  modify 
the  decision  brought  up  for  review. 

Costs  shall  not  be  allowed  against  the  board,  unless  it  shall 
appear  to  the  court  that  it  acted  with  gross  negligence  or  in  bad 
faith  or  with  malice1  in  making  the  decision  appealed  from. 

In  the  city  of  New  York  for  eight  years  no  applicant  for  a  permit  has  been 
able  to  attack  the  constitutionality  of  the  ordinance  because  he  is  compelled 
to  go  to  the  board  of  appeals  and  then  review  the  decision  of  that  board  by 
certiorari.  This  is  no  evasion  of  the  intention  of  the  constitution.  It  proceeds 
on  the  principle  that,  if  there  is  a  method  of  preventing  arbitrariness,  unrea- 
sonableness and  confiscation,  then  the  litigant  must  use  that  method  instead 
of  attacking  constitutionality. 

This  is  what  all  the  states  do  regarding  assessments  for  taxes,  and  the  courts 
become  helpers  in  adjusting  fair  assessments.  They  do  it  by  the  use  of  writs 
of  certiorari.  If  the  assessments  for  taxes  were  fixed  by  the  municipal  legis- 
lature as  a  legislative  act,  a  grossly  unfair  assessment  could  be  attacked  by 
injunction  and  the  court  would  declare  it  unconstitutional  and  void.  Then 
the  taxpayer  would  pay  no  tax  that  year.  This  would  upset  the  whole  system 
of  taxation.  Instead  of  this  the  statute  provides  that  an  administrative  board, 
usually  called  the  board  of  assessment,  can  fix  assessments  for  taxation  sub- 
ject to  the  rule  of  fair  value  between  a  willing  buyer  and  a  willing  seller,  an 
aggrieved  person  can  obtain  a  court  review  if  he  desires,  and  thereupon  the 
court  instead  of  nullifying  the  assessment  can  adjust  it  so  that  the  taxpayer 
will  be  treated  reasonably  and  will  still  pay  his  tax  of  that  year. 

The  courts  presume  that  boards  of  appeals  are  composed  of  experts  and  the 
court  will  refuse  to  substitute  its  own  opinion  for  the  opinion  of  the  board  if 
the  board  has  acted  in  accoi dance  with  the  law. 

People  ex  rel.  Ruth  v.  Leo,  188  N.  Y.  Supp.  945  (1921). 

'"Gross  negligence  or  in  bad  faith  or  with  malice":  One  occasionally  hears 
objection  that  it  is  dangerous  to  give  such  wide  discretionary  power  to  an 


45 


All  issues  in  any  proceeding  under  this  section  shall  have  pref- 
erence over  all  other  civil  actions  and  proceedings. 

Section  8.  Remedies. — In  case  any  building  or  structure  is 
erected,  constructed,  reconstructed,  altered,  converted  or  main- 
tained; or  any  building,  structure  or  land  is  used  in  violation  of 
this  Act  or  of  any  ordinance  or  other  regulation  made  under 
authority  conferred  thereby,  the  proper  local  authorities  of  the 
municipality,  in  addition  to  other  remedies,  may  institute  any 
appropriate  action  or  proceedings  to  prevent  such  unlawful  erec- 
tion, construction,  reconstruction,  alteration,  conversion,  main- 
tenance or  use,  to  restrain,  correct  or  abate  such  violation,  to 
prevent  the  occupancy  of  said  building,  structure  or  land  or  to 
prevent  any  illegal  act,  conduct,  business  or  use  in  or  about  such 
premises. 

Said  regulations  shall  be  enforced  by  the  superintendent  of 
buildings  who  is  empowered  to  cause  any  building,  structure, 
place  or  premises  to  be  inspected  and  examined  and  to  order  in 
writing  the  remedying  of  any  condition  found  to  exist  therein  or 
thereat  in  violation  of  any  provision  of  the  regulations  made  under 
authority  of  this  Act.  The  owner  or  general  agent  of  a  building 
or  premises  where  a  violation  of  any  provision  of  said  regulations 
has  been  committed  or  shall  exist,  or  the  lessee  or  tenant  of  an 
entire  building  or  entire  premises  where  such  violation  has  been 
committed  or  shall  exist,  or  the  owner,  general  agent,  lessee  or 
tenant  of  any  part  of  the  building  or  premises  in  which  such 
violation  has  been  committed  or  shall  exist,  or  the  general  agent, 
architect,  builder,  contractor  or  any  other  person  who  commits, 
takes  part  or  assists  in  any  such  violation  or  who  maintains  any 
building  or  premises  in  which  any  such  violation  shall  exist  shall 
be  guilty  of  a  misdemeanor1  punishable  by  a  fine  of  not  less  than 

appointive  board.  Experience  shows,  however,  not  only  that  these  boards  are 
usually  of  a  high  character  but  that  the  required  publicity  of  their  doings  pre- 
vents favoritism.  If  the  board  exercises  due  discretion,  the  city  treasury 
should  pay  costs  in  cases  where  the  applicant  succeeds  in  the  court  review.  It 
is  a  precaution  against  favoritism,  however,  to  allow  the  court  to  inflict  the 
costs  personally  on  the  members  of  the  board  in  cases  of  abuse  of  discretion. 
People  ex  rel.  Cotton  v.  Leo,  110  Misc.  519;  aff'd  194  App.  Div.  921  (N.  Y., 
1920). 

^'Misdemeanor":  The  violation  of  an  ordinance  is  a  misdemeanor  only 
when  the  state  law  makes  it  such. 

People  v.  Sagat,  204  App.  Div.  485  (N.  Y.,  1923). 
Some  state  legislatures  have  passed  general  provisions  making  such  violations 
misdemeanors.    It  is  a  safeguard  in  every  state  to  provide  in  the  enabling  act 
itself  for  the  enforcement  of  the  ordinance  by  civil  and  criminal  procedure. 

Walsh  v.  Cusack  Co.,  196  N.  Y.  Supp.  435  (1921). 

46 


ten  dollars  and  not  more  than  one  hundred  dollars  for  each  and 
every  day  that  such  violation  continues,  but  if  the  offense  be 
wilful,  on  conviction  thereof  the  punishment  shall  be  a  fine  of  not 
less  than  one  hundred  dollars  or  more  than  two  hundred  and  fifty 
dollars  for  each  and  every  day  that  such  violation  shall  continue 
or  by  imprisonment  for  ten  days  for  each  and  every  day  such 
violation  shall  continue  or  by  both  such  fine  and  imprisonment  in 
the  discretion  of  the  court. 

Any  such  person  who  having  been  served  with  an  order  to 
remove  any  such  violation  shall  fail  to  comply  with  said  order 
within  ten  days  after  such  service  or  shall  continue  to  violate  any 
provision  of  the  regulations  made  under  authority  of  this  Act  in 
the  respect  named  in  such  order  shall  also  be  subject  to  a  civil 
penalty  of  two  hundred  and  fifty  dollars. 

Section  9.  Conflict  With  Other  Laws. — Wherever  the  regula- 
tions made  under  authority  of  this  Act  require  a  greater  width  or 
size  of  yards,  courts  or  other  open  spaces,  or  require  a  lower  height 
of  building  or  less  number  of  stories,  or  require  a  greater  per- 
centage of  lot  to  be  left  unoccupied,  or  impose  other  higher  stan- 
dards than  are  required  in  any  other  statute,  local  ordinance  or 
regulation,  the  provisions  of  the  regulations  made  under  authority 
of  this  Act  shall  govern.  Wherever  the  provisions  of  any  other 
statute,  local  ordinance  or  regulation  require  a  greater  width  or 
size  of  yards,  courts  or  other  open  spaces,  or  require  a  lower  height 
of  building  or  a  less  number  of  stories,  or  require  a  greater  per- 
centage of  lot  to  be  left  unoccupied,  or  impose  other  higher  stan- 
dards than  are  required  by  the  regulations  made  under  authority 
of  this  Act,  the  provisions  of  such  statute,  local  ordinance  or 
regulation  shall  govern. 

ADDENDA 

Important  court  decisions  have  been  made  since  the  collection  of  cases  set 
forth  in  the  notes  on  previous  pages  was  prepared.   These  include: — 

A  comprehensive  zoning  plan  can  properly  exclude  new  stores  from  a  resi- 
dence district. 

Spector  v.  Town  of  Milton,  145  N.  E.  265  (Mass.,  Oct.  1924). 
A  landowner  must  plead  and  prove  special  damages  to  obtain  injunctive 
relief. 

Holzbauer  v.  Ritter,  198  N.  W.  852  (Wis.,  1924). 

Courts  will  uphold  decisions  of  boards  of  appeals  if  arrived  at  with  the  exer- 
cise of  due  discretion. 

Armstrong  v.  City  of  Pittsburgh,  Court  of  Common  Pleas  of  Allegheny  Co., 
Pa.  (Oct.  1924). 


47 


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